¶1The vital question in the case is as to the measure of damages. The Court below properly gave us the statutory penalty for the failure of Ashman to make his return. (Political Code, sec. 4179.)
¶2But the Court should have gone further, and given us judgment for an amount equal to the sum total of all the writs (in addition to the statutory penalty) as damages for a failure to return the writs. In an action against a Sheriff for neglecting to return an execution prima facie, the measure of damages is the amount required to be raised by the execution. It is not necessary for plaintiff to allege or prove special damages. (Lcdyard v. Jones, 3 Seld. 550; Patterson v. Westervelt, 17 Wend. 543; Bank of Pome v. Curtis, 1 Hill, 275; Pardee v. Pohertson, 6 Hill, 550; Weld v. Bartlett, 10 Mass. 474; Kellogg v. Monroe, 9 Johns, 300; Bwezey v. Lott, 21 N. Y. 481; Taylor v. Hancock, 19 La. An. 466; Bowman v. Cornell, 39 Barb. 69; People v. Lott, 21 Barb. 130 ; Shearman & Redfield on Negligence, sec. 533; Freeman on Executions, sec. 368.)
¶3Bayle & McHlvaney, for the Respondents.
¶4In the complaint the plaintiff alleges that he has sustained actual damages (in addition to the statutory penalty) by reason of the failure of the Sheriff to return the executions. This averment is denied by the answer, and the Court below did not *422find whether such damages were or were not sustained, or, if sustained, in what amount. This was a failure to find on a material issue made by the pleadings.
¶5It is claimed by the plaintiff that inasmuch as the Court found that the executions were in the hands of the Sheriff, and were not returned, plaintiff was entitled to recover prima facie the amount of the executions as actual damages. But it is manifest that the finding of a probative fact which might tend to prove, or witich, prima facie, did prove, a certain amount of damages, is not a finding that damages were sustained, since, for aught that appears in the findings, (the evidence not being before us) the evidence of defendants might have entirely overcome the presumption created by the executions.
¶6In the absence of a finding upon the issue referred to, the judgment must be set aside and the cause remanded, with directions to the District Court, upon the evidence already taken, and upon such other evidence as may be adduced by the parties, to find upon that issue, and thereupon to enter judgment.
¶7It is so ordered.
¶8At the January Term, 1878, the Court rendered the following decision:
¶9On a cross appeal in this case by the plaintiff, we decided, at the last term, after full argument, that the Court had failed to find upon material issues raised by the pleadings, and reversed the judgment and remanded the cause, with directions to find upon the omitted issues, and thereupon to enter judgment upon the findings. That judgment has now become final, and it is proper to render the same judgment on this appeal.
¶10It is therefore ordered that the petition for rehearing be denied ; that the opinion and judgment of this Court heretofore rendered be set aside ; and it is further ordered that the judgment of the Court below be reversed and the cause remanded, with the same directions as on the plaintiff’s appeal.