The great question is, whether, in this action of debt on bond to the sheriff, any such breach is shown as to charge the principal and his sureties.
The first breach assigned by the plaintiff, and in support of *130which he proposed to offer proof at the trial, was, that the said French had not paid over to the plaintiff one quarter part of his fees and emoluments, as a deputy. This evidence was rejected, on the ground that there was no stipulation in the condition of the bond, binding the deputy and his sureties to such payment, and therefore that the failure so to pay over one quarter, or any other part of his emoluments, was no breach. And the court are now of opinion that this construction of the bond was correct. The only clause in the condition, which would countenance such a claim, is that which stipulates, in general terms, that said French shall discharge and perform bis said office, agreeably to his oath thereof taken, or that which provides that he shall save said Austin, &c. harmless from actions, damages, costs, &c. which may accrue against him by means of his said appointment, or by means of any malfeasance, misfeasance, or nonfeasance, &c.
As the law stood in 1824, when this bond was given, it was no part of the official duty of the deputy to pay to the sheriff any part of his fees and emoluments. The St. of 1795, c. 41, § 1, then in force, merely prohibited the sheriff from requiring more than one quarter part of certain fees from his deput' "o, but made it no part of their official duty to pay him that or any other proportion. The St. of 1830, c. 110, modified and enlarged by Rev. Sts. c. 14, 88, 89, has somewhat altered and enlarged the provisions of law in this respect; and it would probably be held that, under these provisions, the accounting for fees by the deputy to the sheriff, and the payment to the sheriff of his proportion, for which, over a certain amount, he is to account to the county treasurer, (Rev. Sts. c. 14, § 91, and St. 1843, c. 75,) is made the official duty of the deputy. But when the bond now in suit was given, the payment of fees depended upon such agreement as the sheriff might make with his deputy, within the prescribed limits. The obligation to pay the proportion would then result from such agreement, and become a personal and not an official duty; and of course is not covered by an obligation, binding the deputy to the performance of his official duty. So, in like *131manner, such failure to pay is not an official nonfeasance, against which the bond is an indemnity.
The next material question is, whether the failure of the deputy to keep a register was a breach of the condition. The clause in the condition, upon which this question arises, is this: “ And if said French shall keep a fair register of all warrants, &c., and of his doings and fees thereon, in such fit and concise manner as the said Austin shall order, and subject to his inspection, &c.” It was contended at the trial, that an order or direction on the part of the plaintiff, as to the mode of keeping such register, was a condition precedent to any duty of the deputy; and that unless it were shown on the part of the plaintiff that such order or direction was given, it could not be a breach of this bond that none was kept. But it was ruled, that the two clauses in the condition, one requiring the deputy to keep a register, and one requiring him to keep it in such mode as the plaintiff should direct, were to be taken distributively, and constituted separate and independent conditions, and that he was bound to keep such register "n a particular mode if so directed by the sheriff, and that if no such direction was given, then he was bound to keep a register in some convenient form which would exhibit a true and correct statement of his official acts and of his fees ; and that if no such register was kept, it was a breach of this condition. The court are of opinion that this construction of the bond was correct. The substance of the obligation was to keep a full and accurate register. The mode of keeping it was but an incident enabling the sheriff, if he chose to prescribe a particular form, to have the register in such form ; but the deputy was not exempted from the duty of keeping a register, although the sheriff did not prescribe any particular form.
It was then contended on the part of the defendants, that although a breach was thus established, it was in a matter so immaterial and unimportant, that the plaintiff could recover nominal damages only. It may possibly turn out, upon inquiry, that the plaintiff has sustained no actual damage by the failure of the deputy to keep the register. But we have not *132facts enough before us now to enable us to decide judicially that the plaintiff has not sustained some damage, beyond merely nominal, from this cause.
In assessing damages, it is true that only the direct damage arising immediately from the breach proved, to wit, the failure of the deputy to keep a register, can be regarded, and that the damage sustained by the plaintiff, if any, from the non-payment of his share of the emoluments of his deputy, cannot be recovered in this action. The case therefore must go to an auditor, pursuant to the agreement of the parties, to inquire and report whether the plaintiff has sustained any, and if any what damage, from the breach proved; such damage to be estimated upon the principle above stated.