
    *Henry Bryce ads. Walter Morton.
    In an action on a bail bond,- against bail, the plaintiff is not entitled of course to recover bis entire demand, but can only recover to the extent of his actual damage; and the jury may, under particular circumstances, give , mere nominal damages. 
    
    This was an action on a bail bond, assigned, by the Sheriff of Charleston District, to the plaintiff. Tried before Mr. Justice Gsimk, at Charleston, January, 1817. ', ^
    The defendant was bail to the sheriff, in an action brought by the plaintiff, against one William Adams. In that action, the plaintiff obtained-a judgment and sued out a writ of fieri facias,-which was returned nulla bona; and he now seeks in this action to charge the bail.. The defendant had.neglected to come in, and plead agreeable to the rules of Court. But on the execution of the writ of inquiry, it was insisted for the defendant, that under the Act of 19th December, 1809, he was not liable as bail, until the return of non'est inventus on a writ of capias ad satisfaciendum, against his principal, and that therefore the plaintiff was not entitled to recover more than nominal damages. The plaintiff, however, produced no other evidence than the judgment and-the writ of fieri facias, with the return of nulla bona.
    
    Under the direction of the court, the jury found a verdict for the plaintiff, for the amount of his judgment; and a motion was now made for a new trial on the ground, that under the Act of 1809, bail was not legally responsible, until the return of non est inventus on a writ of capias ad satisfaciendum, against the principal, and that without the production of this evidence he was only entitled to nominal damages.
    
      
      
        Wattles vs. Laird, 9 John. 327.
    
   ’ The opinion of the Court was delivered by

Johnson, J.

If a defendant suffer judgment to go against him by default, it is in some cases, for instance in the action of debt, final, and in all cases it is an admission of the *plaintiff’s action. But where the action sounds in damages, it is incumbent on the plaintiff to show the extent of those damages by legal evidence; and unless he do so, he ought only to recover nominal damages. Nor does it follow that the plaintiff is entitled to recover the whole amount, even where the damages are of a character that render them, in some degree, certain and specific. As in an action against the sheriff for the escape of a debtor in execution under a ca. sa., where it would seem that the judgment against the debtor ought to form the measure of damages ; yet the insolvency of the debtor, and many other circumstances, may be shown, in mitigation of damages. And’in this particular case, if it had appeared, on the face of the judgment itself, that it was either wholly or partially satisfied, it will not be pretended that the plaintiff was, notwithstanding, entitled to a verdict for the whole. It follows clearly, then, that whenever it is necessary to execute a writ of inquiry on a judgment by default, that the plaintiff is not, as a matter of course entitled t'o recover his entire demand.

The declaration in this case, as it should, sets out the bail bond, and assigns a breach of the condition. The exechtion of a writ of inquiry was, therefore, necessary to ascertain the damages. The judgment and fi. fa. against the principal was the only evidence offered, and this, it is said, is conclusive. Now, it is not denied, that to charge the bail, the return of a ca. sa. (non est inventus, is expressly required by the act of 1809, and if, as I have endeavored to establish, a jury is not bound to give the whole amount demanded, it is certainly a good reason why they should not, that the defendant was not legally liable; The very absence of such proof, which, if it existed, was so completely in the power of the party to procure, is such a circumstance as, I should think, would justify a jury in finding a nominal verdict for the plaintiff.

I am therefore of opinion, that the motion ought to be granted.

Cheves and Gantt, JJ., concurred.

*Nott. J.,

dissented :

As there is no exception taken to the proceedings in this case, I presume the plaintiff has set out every thing necessary to show that he is entitled to recover The defendant, by making default, admitted every thing stated in the declaration. It only remained to prove the amount of the demand; and on that subject the judgment and fi. fa. in the action were conclusive.

It was not necessary to produce the ca. sa. The undertaking of the bail is, that his principal shall pay the debt, or surrender himself in discharge of his bail, or that he will pay the debt for him. The jury are not at liberty, as in an action of escape against the sheriff, to give less than the amount of the judgment against the principal, that is, the sum for which the bail is bound.

If the plaintiff has not set forth a good cause of action in his declaration, the judgment may be arrested; but, as the proceedings are not before us, we cannot judge of that matter; no such ground, however, is taken.

But, if the defendant is liable at all, it must be for the sum actually due, and the jury are no more at liberty to give nominal damages, than they are on a promissory note, or single bill.

King, for the motion. Prioleak, contra.

Coloock, J., concurred with Nott, J. 
      
       See Act of 1839, 11 Stat. 31, l 31.
     
      
       7 Stat. 309.
     
      
       The clause of the Act of 1809, referred to, 1 Brev. 53, is in the following words: “In all actions, hereafter to be brought, wherein the defendant or defendants shall be held to bail, by the sheriff-serving the writ or process, the bail so given to the sheriff shall be entitled to all the rights, privileges and powers of special bail, and may surrender his principal in discharge of- himself, or the principal surrender himself in discharge of his bail, in the same manner, and to the same extent, as special bail ale now entitled to; ally law, usage, or custom, to the contrary in any wise notwithstanding. ”
      The construction given to this Act is, that the bail to the sheriff is not liable, until a ca. sa. against the principal has been returned non est inventus. Vide Stevens and Mead, 1 Constitutional Reports, 318. R.
      See vol.’ 2, 569, 136.
      This case may be said to be narrowly limited, if not overruled by Kinsler vs. Kyzer, 4 McC. 315.
     