
    Boyce vs. Barksdale, Sheriff of Laurens.
    Where a defendant is in gaol under a Ca. Sa. and escapes, the plaint iff'has two remedies against the Sheriff i. e. An action of debt, wherein he will be entitled to recover the whole amount of his judgment against the prisoner; or an action on the cace for damages by reason of the escape, in which the jury will be allowed to assess damages according to the circumstances.
    To an action on the case the sheriff may prove that the defendant was insolvent, in mitigation of damages.
    Quere, if the sheriff is liable at all events for an escape, (there being no negligence,) of a prisoner under final process, as in England 1
    The defendant being sheriff of Laurens district, had one Adair in custody, under a ca. sa. of the plaintiff’s against Adair for $299 18, with interest from Nov. 1822. Adair was confined in the goal, wherein the sheriff did not live nor any other person than a negro woman, a servant of the sheriff. The goaler resided in a neighbouring house.. Evidence was given by the defendant of the insolvency of Adair. This was an action on the case for an escape.
    Waties, J. who tried the cause, charged against the defendant, on the ground of negligence, but held that he might prove that Adair was insolvent, to shew that the plaintiff was not entitled to damages. That if it was fully-proved that Adair was insolvent, then the plaintiff had sustained no damages, and could not recover against the sheriff. The jury found a verdict for the plaintiff for a sum less than the judgment against Adair.
    
      CPNeall, for the plaintiff,
    appealed from the verdict on the ground that the measure of damages was the debt, interest and cost in the case in which the prisoner was confined; and that the sheriff was equally liable whether the defendant Adair was insolvent or not. It was the duty of the sheriff to have his body, according to law, to satisfy the plaintiff, and if the sheriff was permitted to avail himself of such a defence, he could at his pleasure- discharge every insolvent person who was committed under a ca. sa. at his will and pleasure, with impunity. What then would come of satisfaction by the body of the debt- or ?
    
      Fan'ow and Bauskett, contra.
   Curia, per

Nott, J.

I understand the judge to have instructed the jury, that the fact of negligence was sufficiently proved if the defendant’s liability depended alone on that fact. But that admitting the escape to have been effected through the negligence of the sheriff, yet if the plaintiff had not sustained any injury thereby he would not be entitled to recover. The defendant was therefore permitted to go into evidence to shew the insolvency of the prisoner to enable the jury to determine whether any and what damages had been sustained by the plaintiff.— And the important question now to be submitted to the court, is whether such evidence was admissible, either by way of justification or in mitigation of damages, or whether the jury ought to have been instructed to give the whole amount of the debt due by the prisoner to the plaintiff. That question ought perhaps to be considered gs settled in the case of Brown vs. Belcher, decided in this court at the Spring Term, 1825. But if the principle is not embraced in that case, numerous others jnay be adduced in support of the opinion of the presiding judge. The plaintiff may proceed against the sheriff in an action of debt, in which he will be entitled to recover the whole amount of the judgment against the prisoner, or by an action on the case for the damages sustained by reason of the escape, in which the jury will be at liberty to assess damages according to the circumstances^ 1 Chitty Plea. 140, 141, 6 Johnson 270, Van Slyk vs. Hogeboom. 2 H. Blk. 112, Alsept vs. Egles. 2 Johnson 454, Rawson vs. Dole. 2 D. and E. 126, Bonefors vs. Walker. The evidence therefore was properly admitted. The English doctrine on the liability of sheriffs is rigorous and harsh, more so perhaps than comports with justice and good policy. That a sheriff should be liable at all events for a person in custody on final process, when no negligence can be imputed to him, can hardly be justified upon any correct principle. It is probably founded on the peculiar policy of England, and whether it would be carried to that extent in this country, is I think questionable. But a sheriff is entitled to but little commiseration who voluntarily permits an escape, or when it results from gross negligence. If therefore the jury had given the whole sum in this case, I am not prepared to say that I should have been dissatisfied with the verdict. But as' they have thought proper to assess a smaller sum, I do not think that the court can interfere.

New Trial Refused. 
      
       The opinion of the court in this case has been lost, by some means or other.
     