¶1refused to give the instruction, because it was abstract; but afterwards, upon a statement of the evidence, gave an instruction in favor of the defendant, which was reduced to writing, but is lost or mislaid.
¶2The jury, however, found a verdict for the plaintiff, and $400.22 damages.
¶3But the Court granted a new trial, on the ground that the verdict was against the law as laid down by the Court.
¶4The cause now came on again for trial upon the general issue, and the Court (Thruston, J., absent,) still adhered to its former opinion, and stated it to be in substance, that if the jury should be of opinion, from the evidence, that Mounljoy Bailey, the deputy-clerk, was of competent skill and knowledge to discharge the duty of deputy-clerk, and exercised faithfully and honestly his best judgment in making the indorsement, the defendant, the principal clerk, is not liable for the error of his deputy.
¶5The plaintiff’s counsel took a bill of exceptions, which stated that, on the trial of the issue in this cause, the plaintiff, to support the issue on his part,
¶6And also the bond of the said Bronaugh to the said -Patons and Butcher, upon which the said judgment was rendered; the condition of which was, that he should pay them $705.55, with legal interest from the 5th of September, 1809, on the 1st day of June, 1812.
¶7Also the forthcoming bond taken under the said execution, and the notice and judgment and execution thereon, dated the 30th of April, 1819, on which the money called for thereby was made and paid over to the plaintiffs’ attorney.
¶8And further proved, that the defendant was clerk of this Court when those executions were issued, and up to the time of the trial. That Bronaugh and Johnson were both insolvent; the former having been discharged under the insolvent act on the 20th of November, 1820.
¶9The defendant then proved, that the executions and forthcoming bond aforesaid, wére all delivered to the plaintiffs’ attorney, who obtained judgment on that forthcoming bond, dated June 18, 1819. That the execution of the 20th of January, 1819, had been issued by Mountjoy Bailey, who was then the defendant’s deputy ; and that in issuing that execution, he had examined the record and bond, and had issued the execution according to his construction of the true interpretation of the said bond, and of the condition thereof.
¶10The defendant also adduced evidence to prove, that the said Mountjoy Bailey was a person of good understanding and correct demeanor, and capable of performing with propriety and correctness the duties of a deputy-clerk. It was admitted, that neither the plaintiffs nor their attorney had given any instructions to the clerk or his deputy, as to the mode of entering up the judgment, or awarding the execution: and that the execution had been issued and delivered to the plaintiffs’ attorney under general orders from him, before any record at large had been made up in the suit.
¶11The defendant further gave evidence to show, that on the night of the 25th of January, 1819, his arm had been broken, by which accident he had been confined to his house all the residue of that month, and the whole of the months of February and March. That about 220 executions had been issued on the judgments of November term, 1818, all dated on the 20th of January, 1819. *650That the issuing and docketing of those executions occupied at least two weeks after the 20th of January, 1819, and the execution in this case being upon a forthcoming bond, was among the last issued.
¶12On which evidence, the defendant’s counsel prayed the Court to instruct the jury that the same was not sufficient in law, if believed by the jury, to charge the defendant in this action, or to subject him to damages for the error in the execution of the 20th of January, 3819.
¶13Which instruction the Court refused to give, but instructed them, that if they should believe the facts to be as above stated, and should also believe from the evidence aforesaid, that there were no minutes nor instructions furnished to the clerk, by the plaintiffs, or their attorney, at the time the said short entry of the judgment was made, and that the said short entry, and the other docket entries, and the said bond, were the guides by which the said deputy-clerk issued the said execution, and made the said indorsement thereon; and that in issuing the said execution, and in making the said indorsement thereon, he exercised honestly his best judgment as to the nature and terms of the judgment which ought to have been entered up in the case ; then his error in misunderstanding the inference at law, which entitled the plaintiff to interest until the time of payment, is not such a want of skill, or such negligence as will charge the defendant in this action.
¶14The defendant further prayed the Court to instruct the jury, that if, from the evidence so as aforesaid given, they should be of opinion that the mistake charged in the declaration in issuing the execution therein mentioned, was committed by Mountjoy Bailey, the deputy of the defendant, duly appointed and sworn as such, and that the said Mountjoy Bailey was, at the time of issuing the said execution, competent to the correct discharge of the duties of the said office, and that the defendant has been guilty of no neglect in superintending the said deputy in the discharge of the duties of his said office in issuing the said execution; then the defendant is not liable to the plaintiffs in this action, for the said mistake of his said deputy.
¶15Which instruction the Court gave as prayed.
¶16To which instructions the plaintiffs’ counsel excepted.
¶17Verdict for the defendant.
¶18The plaintiffs’ counsel moved the Court for a new trial, and cited Russell v. Clayton, 3 Call, 37, 41, and Stewart v. Madison, 1 Call, 417, 481.
¶19The Court continued the cause to November term, 1826, for consideration, and at that term (November 16, 1826,) refused to grant a new trial. (Thruston, J., absent.)
¶20 Mr. Patous, one of the plaintiffs, had departed this life since the commencement of the action.