
    Martin G. Danforth vs. Jabez Pratt.
    Tn an action for taking insufficient hail, the measure of damages is the injury actually sustained by the judgment creditor; and evidence is competent, of the pecuniary condition of the debtor three months before he was liable to be taken in execution.
    This was an action on the case, to recover damages of the defendant, as a deputy of the sheriff of Suffolk, for taldng insufficient bail on mesne process, in a suit of Danforth against one Charles Pierce and others.
    At the trial, before Bigelow, J., in the court of common pleas, the plaintiff introduced evidence that the original writ, in his action against Pierce, was dated December 26, 1848, and returnable to the April term of the court of common pleas in the next year; that Pierce was arrested and gave bail, January 10,1849 ; that Pierce, prior to the rendition of judgment in the action, to wit, in June, 1849, left the commonwealth for California, and had not returned; that judgment was recovered against him at the July term of the court, 1849; that the date of the judgment was August 17, 1849, and the date of the execution was August 24, 1849; that the amount of the execution was $290.59 debt and $27.39 costs, and it was returnable to the October term of the court in that year. The plaintiff also put in evidence a judgment recovered by him on a scire facias against the bail in the above action, dated March 13,1850, and the return of the defendant thereon, that, for want of goods or estate, he had committed them to jail. He also proved that the two persons taken as bail took the poor debtor’s oath on the execution against them, one on the 2d of April, 1850, and the other ,on the 25th of May, 1850. He also introduced other evidence that one of the sureties in the bail bond was insufficient at the time he was taken as bail.
    The defendant introduced evidence that he had been guilty of no violation of duty, but, on the contrary, that the sureties were sufficient at the time they were taken; and also proposed to show that Pierce, at the time of his arrest, and at the time of his leaving the commonwealth, was poor and entirely destitute of property, and the plaintiff knew it when he arrested him. To the admission of evidence of this kind, the plaintiff objected, but the judge overruled the objection, and the plaintiff excepted.
    The plaintiff, then, reserving all his right under his exceptions, admitted the facts thus proposed by the defendant to be proved, and also that Pierce, when he left, was poor and destitute of property, and was owing a large amount of debts.
    The jury found for the plaintiff, and assessed damages at one cent.
    
      H G. Hutchins, for the plaintiff.
    1. The officer taking insufficient bail is liable to the creditor for all damages suffered therebv. Marsh v. Bancroft, 1 Met. 497.
    2. And the poverty of an absconding debtor does not tend to mitigate the damages ; at all events, unless he is proved to have been worthless at and after the date of the rendition of the judgment against him.
    3. The damage suffered by the plaintiff in this action was, the loss of the whole judgment which he had recovered against Pierce, and the cost of fruitless suits against the bail, deducting the value of his judgment against Pierce and against the bail. Rev. Sts. c. 91, § 5 ; Young v. Hosmer, 11 Mass. 89; Nye v. Smith, 11 Mass. 188; Gerrish v. Edson, I N. H. 82; Crooker v. Hutchinson, 1 Vt. 73.
    
      J. A. Andrew, for the defendant.
   Bigelow, J.

The single question presented by the bill of exceptions in this case is, whether, in an action on the case against the sheriff, for taking insufficient bail, it is competent for the defendant to prove, in mitigation of damages, the inability of the original debtor to pay the judgment which has been obtained against him, in the suit upon which he was arrested. The decisions on this point have been uniform in this State, and it is now quite too late to reopen the question. Weld v. Bartlett, 10 Mass. 470; Young v. Hosmer, 11 Ib. 89; Nye v. Smith, 11 Ib. 188; Shackford v. Goodwin, 13 Ib. 186; Brooks v. Hoyt, 6 Pick. 468; West v. Rice, 9 Met. 564.

In all these cases, it has been held, that the true measure of damages is the injury actually sustained by the judgment creditor; and, therefore, evidence tending to show that the debtor was poor or insolvent, so that, if arrested on execution, it would not have enabled the creditor to realize his debt, also tends to prove that the plaintiff suffered no essential injury by the negligence of the officer.

It was urged by the counsel for the plaintiff, that the evidence offered by the defendant, at the trial, was inadmissible; because it was not confined to the pecuniary condition of the debtor at the time of, and subsequent to, the rendition of the judgment against him. But this argument loses sight of the distinction between the competency and the weight of evidence. The precise fact to be proved was, undoubtedly, the inability of the debtor to pay the debt, at the time when he was liable to be taken on execution; but evidence which showed that, previous thereto, he was deeply insolvent, tended also to prove that he was so at the period of time in question. Such testimony may be quite unsatisfactory, and subject to many qualifying considerations, which may well be urged upon the attention of the jury, whose province it is to weigh the evidence in estimating the amount of damages; but its competency is quite too clear to admit of a doubt. In the case at bar, the evidence, which was admitted at the trial, proved the pecuniary condition of the debtor three months prior to the time when he was liable to be taken in execution, and was not so remote as not to have a materia] ■bearing on the question of damages.

Exceptions overruled.  