
    Addison County,
    January Term, 1828.
    
      Town of Middlebury vs. Stephen Haight.
    
    In an action against the sheriff for an escape, the plaintiff will not be permitted to show that the act for which the prisoner had been sued was willful and malicious, or that, before he escaped, his friends had offered to pay the plaintiff a part of the debt, on condition he would discharge the prisoner.
    Action for escape on mesne process. The issue was tried by ■ the court by agreement of parties. On the trial of this case the defendant admitted the commitment and escape as alleged in the declaration — and introduced evidence tending to shew that the prisoner who escaped was poor, and had no property of any kind. The plaintiffs offered evidence to shew that the act for which they had sued the prisoner was-wilful and malicious, and also, that before the prisoner escaped, they received offers to the amount o^ fifty dollars from persons in Essex, in the state of JYew YorJcr where the prisoner resided, on condition they would discharge him. The court rejected the evidence, and' decided that the execution, being- a close-jail one, and the prisoner not being entitled to the-benefit of the oath, or limits of the jail-' yard, and the fact that the plaintiffs were offered money to discharge him, were circumstances which could have no influence upon the amount of damages in the case. The plaintiffs excepted to the decision of the court rejecting the evidence offered by the plaintiffs, and the cause was removed'to this court for a revision of said judgment.
    
      Bates, for ike plaintiff. 1. It will be observed the statute does not put the damages exclusively upon the ground of “property,” but upon the prisoner’s circumstances, situation, ¡ho. The design of the Legislature was that the creditor should have just what he lost by the escape. This is the only just principle. How much more the execution was worth,in consequence of the offer of fifty dollars, and of its being a close-jail execution, the jury should have been left to sáy. And in such cases a jury, taking into consideration “ all the circumstances,” could estimate its value as well as they could many other kinds of property. Certainly, the difficulty of ascertaining the amount of damages is no reason why none should be recovered. The evidence offered by the creditor must have convinced any one that his execution was worth at least fifty dollars. To say he shall recover only nominal damages, is not giving him, in the language of the statute, the damages he has “ sustained in consequence of such escape.”
    2. The testimony offered by the creditor tended to rebut the evidence of the defendant, as to the absolute poverty of the prisoner. The fact that strangers appeared and offered fifty dollars was evidence proper for the jury to weigh, as going to shew that the prisoner himself could have raised that amount, since men do liot usually pay the debts of others. Upon the whole, whether a close-jail execution is valuable, depends upon many circumstances besides the prisoner’s property. He may have a good profession,- or the means of raising money, or the debt may have arisen from some request of others wh'o would feel bound in honor to relieve him. That the last was true in this case seems highly probable from the nature of the transaction.
    
      Mr. Phelps for the defendant, contended that the rule of damages,-in cases of this sort, depends upon the previous ability of the debtor; and and that it is not competent for the plaintiffs to shew, for the purpose of enhancing the ■damages, that the confinement of the prisoner might operate to wrest from the sympathy or the charity ofi friends, what the debtor is not able, from his own means to respond.
   PbeNtiss, J.

delivered the opinion of the court. This is an action on the case, brought against the sheriff, for the escape of a prisoner in custody upon original process. At the trial, the defendant having introduced evidence, that the prisoner, at the time of the escape, was destitute of property, the plaintiffs offered to show that the cause of action for- which the prisoner was arrested and committed, arose from the wilful and malicious act of the prisoner; and also, that before the escape, certain persons had offered the plaintiffs fifty dollars, if they would discharge the prisoner. The evidence, thus ofiered, was rejected by the court, and .we are now to decide whether it was admissible.

The statute [Comp, stat.p. 218, s. 4,) provides, that in any action brought for the escape of any prisoner, the sheriff may give in evidence the circumstances, situation, and property of the prisoner, at the time of the escape, and all the circumstances attending the escape; and the creditor shall recover no more than his reasonable and just damages, which he shall have sustained in consequence of the escape.The plaintiffs,then,were entitled to recover in this action according to the damages they had sustained-by reason of the escape; and the defendant was entitled to give in evidence the poverty of the prisoner to shew how far the plaintiffs had been damnified. If the prisoner was destitute of property, and had no means of paying the damages for which he1 was sued3 the plaintiff’s cause of action against him must have'been of very little value to them, whether the prisoner, on final process, would or would not have been entitled to the liberties of the prison, and the benefit of the poor debtor’s oath.The legitimate' object of imprisonment, in civil cases, is, to coerce the debtor to apply the means which may be in his power to the payment of the debt, for which he is committed. It is true, that when the case is such, that the execution confines the party within the walls of the prison, without the power of obtaining a discharge but by payment of the judgment, and he is unable to malee payment, friends, and even strangers may be- induced', from motives of charity and humanity, to advance the requisite sum for his relief. But though such may be the effect of imprisonment, yet it is a mere possibility, too remote and uncertain to be taken jnto consideration in assessing damages for an escape. The evidence relativé to the nature of the plaintiff’s original cause of action, therefore, was properly excluded; and the same principle applies to the proof of the offer made the plaintiffs for the discharge of the prisoner. That was a mere proposition which was rejected at the time, and might never have been made again. The only legitimate considera- ' lions, in assessing the damages, were the amount of the plaintiffs’ demand, the means and ability of the prisoner to pay it„and the ‘ particular circumstances attending, the escape.

Bates, for plaintiffs.

Phelps, for defendant.

Judgment affirmed.  