
    BARNES a. WILLETT.
    
      Supreme Court, First District ;
    
      Special Term, August, 1860.
    Liability of Sheeiff.—Escape of Insolvent Debtoe.
    The provision of 2 Eevised Statutes, 437, § 63, giving an action of debt against the sheriff for an escape from final process, is still in substance in force, and the sheriff may be held liable in a similar action under the Code, for the judgment for which the prisoner was committed. '
    
      In an action founded on the statute, as distinguished from a mere action for damages, the sheriff cannot interpose as a defence the insolvency or poverty of the prisoner.*
    Demurrer to answer.
    This was an action brought against the defendant, as sheriff of the city and county of New York, to recover the amount of a debt owed to the plaintiffs by one Jacob Cohen, who escaped from the custody of the sheriff. The defendant put in an answer, averring that the escaped debtor had been in some respects wronged by the plaintiffs, and that he was insolvent, and could not have paid the debt, even had he been detained longer.
    The plaintiffs demurred to so much of the answer as set up such a defence.
    
      A. Mathews, for plaintiffs.
    
      A. J. Vanderpoel, for defendant.
   Sutherland, J.

The statute (2 Rev. Stat., 437, § 63) gave an action of debt against the sheriff for an escape from final process, and declares, that in such action the sheriff shall be answerable for the debt, damages, or sum of money for which the prisoner was committed.

The statute did not take away the common-law remedy for the escape, by action on the case.

Before the Code, if the action for the escape was debt, the plaintiff was limited in his recovery, by the express words of the statute, to the amount of the original judgment. .

The statute fixed the extent of the sheriff’s liability at the amount of the debt, &c., for which the prisoner was committed. If the action was for debt, the sheriff could not, as a defence, or in mitigation of damages, give evidence of the insolvency or poverty of the prisoner, or of any other circumstance, to show that the plaintiff had lost nothing by the escape.

If the action was an action on the case, the plaintiff-recovered the damages sustained by him, which might be more or less than the judgment, and in such action the sheriff might give in evidence, circumstances to show that the plaintiff had lost nothing, or in mitigation of damages. (Rawson a. Dole, 2 Johns., 454; Thomas a. Weed, 14 Ib., 255; Littlefield a. Brown, 1 Wend., 398.)

The Code (§ 69) has abolished the form of the action of debt, but it has not abolished or repealed the provision of the statute before referred to, giving to the party at whose suit the prisoner was committed, a right to recover, for his escape from final process, irrespective of the question of the actual loss or damage, the amount of the original judgment or recovery precisely, as a penalty for the carelessness or misconduct of the sheriff. (Code, §§ 468, 471; Hutchinson a. Brand, 5 Seld., 209.) The Code has not abolished, and could not very well have abolished, the distinction between mesne and final process. These terms have been dropped by the Code, but the distinction, in fact, remains.

In this case, the plaintiffs by their complaint, after alleging the recovery of their judgment for $6,089.61, the amount of their debt and costs, introduced facts to show their right to issue an execution against the person of Jacob Cohen, one of the judgment-debtors, the issuing of such execution, his arrest, his detention, and subsequent escape, and alleged that thereupon the judgment remaining wholly unpaid, the defendant in this action, sheriff, &c., became indebted to them in the said sum of $6,089.61, the amount of said judgment, and claim to recover that sum with costs.

Although the Code does not call this an action of debt, and perhaps we are not permitted to call it by that name, yet it is plain that the plaintiffs rest their right to recover the precise amount of their judgment, with the costs of this action, upon the statute; and that we should look upon the action as an action under the statute, for their debt, the judgment, and not as an action at common law to recover damages.

The abolition by the Code of the form of the action of debt, has certainly not taken away the plaintiffs’ right to recover for the escape under the statute; and if they have this right, how can they state their cause of action under the Code, otherwise than by stating the facts which show their right to recover under the statute, and by claiming to recover precisely what the statute authorizes them to recover ?

I think it plain that this action should be looked upon as an action of debt under the statute; and that the defendant, notwithstanding the abolition of the forms of action by the Code, had not a right to set up as a defence thereto the matters set up in the 8th, 9th, and part of the 10th folios of his answer as a second defence.

It is plain too, I think, that the matters set up by the defendant in his answer, as a third defence, constitute no defence.

How can the sheriff, in an action for an escape, protect himself from the consequences of his own wrongful act or neglect, by setting up the wrongs which the escaped prisoner may have suffered at the hands of his judgment-creditors? (Ames a. Webbers, 8 Wend., 545; Bacon a. Cropsey, 3 Seld., 195.) Even Cohen, the defendant in the original suit, could not have availed himself of the fact that another action was pending in Georgia for the same cause of action, by pleading it in bar. (Walsh a. Durkin, 12 Johns., 99 ; Bowne a. Joy, 9 Ib., 221.) Moreover, it would appear that Cohen was surrendered by his hail in Georgia, after his escape from the defendant, and after this action was commenced.

The plaintiffs’ demurrers to the matters stated in the answer, by way of second and third defence, must he sustained, and those parts of the answer must be overruled, with costs. 
      
       Compare Metcalf a. Stryker, 10 Ante, 12, and cases cited.
     