delivered the opinion of the court, March 2d, 1885.
This was an action against the sheriff for a false return to a writ of foreign attachment. The service was made upon the garnishees on the 31st of December, 1878. By some oversight the writ was returned as served upon the garnishees on the 3d of January, 1879. On the second of January the defendants in the attachment transferred-the policies of insurance the money clue on which was sought to be reached by the attachment, to H. B. Claflin & Co., of New York, as security for an antecedent debt. Suit was commenced on the policies by Claflin & Co., which, after a protracted litigation, and a denial of liability on the part of the insurance companies, resulted in a compromise, and the payment to Claflin & Co. by them of about-$40,000. Before this could be carried through it appears to have been necessary to get rid of the foreign attachment issued by Darlington, Runk & Co., whereupon Claflin & Co. paid the latter $750, and the attachment was discontinued.
The judgment against the defendants in the attachment was for the sum of $2,230.51, and it was for this sum with interest, less the $750 above mentioned, that this suit was brought against the sheriff, and for which a verdict and judgment were obtained in the court below.
*376That the return of the sheriff was false is conceded. The plaintiffs below were entitled to recover if they were injured by the sheriff’s mistake. They claimed more; that they were in any event entitled to nominal damages; but we do not think that this point can be sustained, however the law may be laid down in some of the text books. In Com. v. McCoy, 8 Watts, 153, it was held that in an action upon the official recognizance of the sheriff, to entitle a plaintiff to recover, he must prove that he has sustained damage by his misconduct. The rule there stated is believed to be a sound one; it was never intended that a sheriff should be vexed with suits for nominal damages for a false return or other official misconduct or mistake which has not injured any one.
The difficulty in the way of the plaintiffs is that they have not ascertained in any judicial proceeding that there was a fund in the hands of the respective garnishees subject to their attachment. Instead of doing this they discontinued the attachment in consideration of a sum of money, and thus released, the garnishees from any further liability. As to them it was a settlement of all claims against them under the attachment. This much must be conceded. But it was claimed for the plaintiffs that their proceeding had been rendered abortive by reason of the sheriff’s return. That upon a trial of the scire facias the return to the writ would put them out of court. This is begging the whole question. It was shown on the trial below that the garnishees admitted the service of the attachment upon them December 31st, and under the Act of Assembly the funds in their hands would be bound from time to time. We do not know that they would have raised any such question ; they might have admitted the true date of the service in their answers, and that there were funds in their hands. The answers could have been read to the jury under Erskine v. Sangston, 7 Watts, 150. We need not discuss the difficulties that might have arisen upon a trial upon the scire facias growing out of the return of the sheriff, because they do not arise in this case. No attempt was made to pursue the garnishees. On the contrary, there was a settlement and discontinuance as to them. Further, the liability of the insurance companies under their policies has not been judicially ascertained. The settlement made in New York with Claflin & Co. was, as before stated, a compromise, a settlement of protracted litigation in which all liability has been persistently denied. We have therefore to assume that upon a trial of the scire facias the liability' of the companies would have been established. .It might have been, but we cannot say so, and we will not guess. The plaintiffs put it out of their power to ascertain this in the manner required by law.. They released their grasp upon the *377fund, and at the same time rendered it impossible to sbow actual damage sustained by the return of the sheriff. The liability of the insurance companies to the defendants in the attachment cannot be adjudicated in an action against the sheriff for a false return. That must be settled in an orderly way. Further, upon the trial upon the scire facias the plaintiffs would have been entitled to attack the validity and bona fides of the assignment to Claflin & Co. It may be that they would not have done so, or, if they had, it would have been fruitless. But we cannot assume all these vexed questions in this proceeding.
We are of.opinion that in voluntarily relinquishing their grasp upon thqfund in the hands of the garnishees, the plaintiffs have at the same time lost their hold upon the sheriff, and that the learned court below should have given the jury a binding instruction to find for the defendant.
Judgment reversed.