
    The Governor, to the use of Robertson & Co. v. Matlock and others.
    J>From Rockingham.
    In debt on Sheriff’s bond for escape, it is proper for the Jury to consider the damages really sustained by the escape ¡ and they are not bound to give the whole sum due from the original debtor.
    This was an action of debt upon a Sheriff’s bond against the Defendant and his sureties j and the declaration alleged that Matlock had voluntarily permitted •the escape of one Hodges, who was in custody on a ca. sa. at the' instance of Robertson & Co. The facts, as stated in the declaration, were substantially proved before Nash, Judge, who instructed the Jury that whether the escape were voluntary or negligent, the liability of the Defendant remained the same; and should they find for the Plaintiff, that question, whether voluntary or negligent, could make no difference, as to the quantum of damages to which Plaintiff might be entitled; that as the suit was brought for damages for a breach of the covenants in the Sheriff’s bond, the Plaintiff was entitled to damages in either case, only to the amount of the loss sustained in consequence of the breach; and that loss depended on the ability of the debtor to pay.
    
      n was proved on the trial that the debtor was insolvent; and the Jury found a verdict for the Plaintiff, and assessed his damage to $25. Phiintiff moved for a new trial, on the ground of misdirection in matter of law motion disallowed; judgment, and appeal.
   Tayxos, Chief-Justice,

delivered the opinion of the Court :

That the act of 8 and 9 Will. 3, c. 2. sec. 8, was extended in practice to this State, and considered to be in ■ force in 1777, is rendered plain by the Court Law, the -73d section of which, provides for rendering judgment in an action of debt which shall be final, “ except where damages are suggested on the roll.” No such practice was known at Common Law j for when covenants and agreements were contained in the comlitiort of a bond, the Plaintiff, upon a breach, recovered the whole of the penalty, and the Defendant was driven into Equity for relief. The statute of William is the only one providing for bonds with covenants or agreements in the condition | and the very great necessity for the regulations it contains, makes it difficult to suppose that our ancestors, could have done without it. A Sheriff’s bond for the performance of his duty, especially requires such a provision, and no breach that could be assigned under it more so than an escape, in which cases of great hardship sometimes occur against the Sheriff. Taking the eighth section of the statute then tq be in force, it is the settled law under it, that it is not in the power of a Plaintiff to refuse to proceed according to it, incases within the provisions of the section $. but that he must assign the breach of such covenant as he proceeds to recover the satisfaction for j and the Jury upon the trial of a cause, must assess damages for such of the.breaches assigned, as the Plaintiff, upon the trial of the issues, shall prove to have been broken — (2 Wils. 377.')

It was proper, then, for the Jury in this case to consider the damages really sustained by the escape,* and they were not hound to give the whole sum due from the original debtor, as in debt upon the statutes of West. 2, and Rich. 2. The rule for a new trial must be discharged.  