
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1802.
    Smith v. Hart.
    In an action on the ease against the sheriff,' for ah escape on meshe profr cess, a variance, as to the amount of the debt alleged to be due by the' prisoner, is not material, and will not defeat the action.
    Although the declaration charge a voluntary éácape, proof of an escape' by gross negligence, will sustain a verdict for the plaintiff.-
    In an action on the ease for an escape on mesne process, the jury are not limited, as in an action of debt for an escape on execution, to finding any piecise sum, but must assess damages according to the evidence of the* injury actually sustained;
    The insecure state of the gaol cannot be given in evidence in an action ag'ainst the sheriff, for an escape, either as an excuse, or in mitigation of damages, [vide 2 Bay,. 395. S. C.j.
    Motion for a hew trial. The plaintiff brought an action of trespass on the case against the defendant, as sheriff of Charleston' district, for au escape of one taken upon a capias ad respondendum, at the suit of the same plaintiff ;• and obtained a verdict : and this' motion was on behalf of the defendant, to set aside the verdict, and grant a new trial; on the following grounds :■ 1. That the plaintiff; in his declaration, states, that the person who escaped was indebted to him for a horse sold at two'hundred dollars, and the evidence given at the trial, was of ninety dollars only; and it was contended that this evidence did not maintain the declaration as laid, and that the variance was fatal. To this point was cited Doug. 665. 3 Burr. 1333. Esp. Dig. 138. 2. That the declaration charges a voluntary escape, and the evidence given was of a negligent escape. To establish this distinction was cited, 1 Vent. 211, 217. 2 Vent. 136. Bull. N. P. 67. 3. That the court directed the jury to find-the amount of the debt sued for, as damages ; which is not the true measure of damages in the case of an escape on mesne process, though it may be a proper rule in the case of an escape on a ca. sa. To this point was cited, Com. Dig. Escape, B. 1. 5 T, R. 37. 3 Burr. 1333. 4. That testimony was offered, which was rejected by the court, to prove the insecure condition of the gaol; and that the defendant had made repeated representations,- and remonstrances, on the subject thereof, to the Legislature, in order to have it repaired: and that debtors could not be safely kept' therein, without locking them up with criminals, which is contrary to law, P. L. 82, and the constant usage of the country.-
    
      23 contra.
    
    In relation to the first ground, the counsel for the plaintiff argued, that the evidence given was sufficient to maintain the declaration, for that in this action material averments only are put in issue. 2 Bl. Rep. 840. 4 T. R. 658. Esp. Dig. 655, 659. And, therefore, if the substance oí the issue is found, it is sufficient, though the declaration should not be proved exactly as laid. Bull, N. P. 65, 66. 2 Bac. Abr. Escape. G.
    Upon the second point it was contended, that there was no ground for the objection which was raised. That the evidence to prove a voluntary escape might prove negligence of the sheriff¡ .and that the proof of gross negligence might afford strong presumptive evidence of a voluntary escape : and it was right to allow such evidence to go to the jury, who should have an opportunity to form their own conclusions thereon.
    On the third point, it was denied, that the judge had so charged the jury : and Grimke, J., before whom the action was tried, said that he left the damages to be assessed by the jury, under all the circumstances of the case, without laying down any particular rule for their guidance. The counsel then remarked, that for an. escape on ca. sa. the jury may give more than the original debt, and cited, 2 II. Bl. 108. And that for an escape on mesne pro, pess, there is no certain rule, but the plaintiff must recover according to the cause of action he makes out. Bull. N. P. 66. 3 Wils. 294. Esp. Dig, 609.
    On the last ground it was insisted that the evidence was inadmissible, and that no such cause as is stated, would, if proved, excuse the sheriff. That nothing will excuse the sheriff in such ca.se but where the escape is occasioned by the gaol being on fire, or broken open by the public enemies of the State. 4 Rep. 84» Bull. N. P. 66.
   The court,

all the judges being present, agreed to the doctrine laid down by the plainfjff’s counsel; and unanimously concurred in refusing a new trial. The court observed, 'that it appeared the sheriff had been guilty of gross negligence, and that the jury might thence infer, that the escape was voluntary. Having found for the plaintiff, they would presume that the jury did draw that conclusion from the evidence ; and they agreed that the defective condition of the gaol was not a sufficient legal excuse for a sheriff.

New trial refused.

Note. — In the cage of Bonafous v. Walker, 2 T. R. 126, which was an action of debt for an escape of a prisoner in execution, the first count of the declaration stated a voluntary escape ; and the second was for a Begligent escape : and it was determined, 1. That under a count for a voluntary escape, the plaintiff may give evidence of a negligent escape. 1 Vent. 211, 217. 2. That the jury cannot1 give a less sum than the creditor -would have recovered against-the prisoner; viz. the sum endorsed on the writ, and the legal fees of execution. 8. That-an administratrix may maintain an action in her own1 name, against the sheriff, for the escape of a prisoner, in execution on a judgment-obtained by=her, as administratrix to her husband. At common law an action on the case lies-against the sheriff or gaoler, for an escppe, in which case a creditor may recover damages for the officer’s misconduct; but still He had a right to recover the debt against the original debtor. But the statutes 18 Ed. 1, c. 11, P. L. 29, and 1 Ric. 2, c. 12, P. L. 36, gave an action of debt against the sheriff, or gaoler,‘to recover at once the suni for which the prisoner was charged in execution. These statutes, however, did not take away the common law remedy, so that the creditor has his election; but if he adopt the latter, he must recover the whole sum. 2 Bl. Rep. 1048. 2 T. R. 129, 130- In debt for an escape, on execution, plaintiff is entitled to recover poundage. Ib. See Bull. N. P. 68. Esp. Dig. 609. The statute 8 and 9 W. 3, c. 26, sec. 8, referred to in these authorities, is nearly jiursue'd in the A. A. 1788, P. L. 457.

' Iii an1 action of debt against the sheriff for an escape of one in custody on a ca. sa.f the statute fixes the extent of the sheriff’s liability, to wit, the original debt and damages, and the plaintiffs can recover no more ; but an action on the case lies at common law, in which more than the original judgment-may be recovered. Rawson v. Dole. 2 Johns. 454. A prisoner arrested on mesne process, after judgment in the suit, but before execution, escaped, and voluntarily returned on the same day ; and it was held on demurrer that the sheriff was liable. Stone v. Woods. 5 Johns. 182. No difference whether escape was voluntary, or negligent. 1 Str. 423. 2 Str. 873. 2 Wils. 294. 5 T. R. 37. 2 T. R. 172. 3 Bl. Com. 296.

I ■ If a sheriff take insufficient pledges in distress, for rent, required by II Geo. 2, c. 19, action on the case lies against him. 2 'T. R. 617. -Ini' which action plaintiff shall recover the damages he- hag sustained, although they may exceed the penalty of the bond. 2 H. Bl. 36 4 T. R. 433, contra. . The'penalty, of the bond ought to be the measure of damages against the sheriff 2 H. Bl. 547. See 1 Saund. 195. f. Williams’ Ed* ih note. In an action for escape' after arrest, on capias ad respondendum, the sheriff having returned fescue, it was held that the plaintiff’s loss is the true question as to the damages; and the ’sheriff’s false return neither adds to, nor diminishes, the loss, but the circumstances of defendant maybe given in evidence in mitigation. Potter v. Lansing. 1 Johns. 215. Eor false return of the sheriff on mesne process, plaintiff can recover fie more-than he has actually lost by the escape. Ib. F,  