
    * John Burrell versus Arthur Lithgow.
    In an action of the case against a sheriff for the escape of a debtor, committed on original process, through the insufficiency of the jail, the jury have a discretion m assessing the damages which the plaintiff has sustained, and are not bound to find for him his whole debt.
    This was an action of the case against the defendant, as sheriff of the county and keeper of the common jail, wherein the plaintiff declared against him, for that one Amos Partridge, under-keeper of said jail, for whose conduct in said office the defendant was answerable, did so carelessly and negligently keep and confine in said jail one Moses Lambert, who was committed to his custody upon mesne process in favor of the plaintiff, that he escaped out of said jail; and although the plaintiff, upon the said process, recoverec judgment against the said Lambert for 167 dollars and 7 cents damage, and 17 dollars and 46 cents costs, yet he never has been able to take and arrest said Lambert by force of said judgment and execution, by means whereof he has utterly lost the use and benefit of said judgment.
    There was a second count similar to the first, except that it charges the escape of Lambert altogether to the insufficiency of the jail, whereby, &c.
    The defendant pleaded that the said Amos Partridge was not guilty, on which issue was joined.
    Upon trial of this issue at the last September term, before Thatcher, J., the plaintiff proved the commitment and escape of Lambert, the judgment recovered against him as set forth in the declaration, and that the execution upon that judgment was delivered to a deputy sheriff, who returned thereon that he had made diligent search for the body and property of Lambert, but had been able to find neither.
    There was evidence of the insufficiency of the jail, and of Lambert being a poor man, in the opinion of the witnesses unable to satisfy the execution against him.
    When the evidence in the cause was all offered to the jury, the plaintiff abandoned his first count, and relied on the second.
    The judge charged the jury that, on the whole evidence, they ought to find Partridge not guilty on the first count, and [ *527 ] guilty *on the second; and that, from the words of the statute  on which the second count was founded, they would be warranted in giving the plaintiff, in damages, a sum equal to his judgment against Lambert, and interest thereon from the rendition thereof, or from the return of the execution.
    The jury found that Partridge was not guilty upon the first count, and that he was guilty upon the second count, and they assessed damages for the plaintiff in the sum of 20 dollars.
    The plaintiff moved the Court to set aside the verdict and grant' a new trial, because the verdict was given against law, and against the direction of the judge in a matter of law, viz., in the rule laid down for the estimation of the plaintiff’s damages.
    The motion was submitted to the Court without argument.
    
      
       Passed February 21 1785.
    
   By the Court.

The question before us is whether, in an action for an escape of a debtor committed on original process, and not on execution, through the insufficiency of the jail, the jury have no discretion, but are bound by law to find for the plaintiff his whole debt, although the debtor may in fact be insolvent and worth nothing.

It has been long settled that the jury are not obliged to find for the plaintiff his whole debt, when the debtor committed upon original process escapes through the negligence of the jailer; but it has been contended that the law is otherwise where the escape happens from the insufficiency of the jail.

The sheriff, by our statute, has the custody of the jail, and of all the prisoners in it; and if a debtor in prison on original process escapes, the sheriff is answerable to the creditor in an action on the case, who shall recover according to the damages he has sustained. This is the common-law remedy.

By the provincial statute of 32 Will. 3, c. 5, sect. 5, it is enacted that, when a prisoner for debt shall escape through the insufficiency of the jail, the county shall make good to the creditor such debt as the prisoner escaping justly owed him, and * shall have their remedy against the prisoner. By the [ * 528 ] practical construction of this statute, this section was confined to such debts as the creditor was, by reason of the escape, entitled to recover —it not being supposed that the legislature intended to improve the creditor’s remedy as at common law, but, instead of the sheriff, who has the custody of the jail, to substitute the county, against whom he should recover his debt or damages, they being by law obliged to build and keep in repair a sufficient jail.

The practice under the fourth section of that act was also similar. By this last section, when a prisoner for debt committed a negligent escape, the prison-keeper was made answerable, according to the letter of the act, for the whole debt, whether the debtor escaping was committed on original process or on execution. But the construction of the section confined it to escapes from imprisonment on execution, and considered it as merely in affirmance of the common law. As this section did not extend to voluntary escapes, if this construction had not been adopted, a voluntary escape of a debtor on original process would have been less penal than a negligent escape: for in the former case, the remedy being at common law, the creditor must have recovered according to his damages; while in the latter case he would have recovered his whole debt.

Wilde and Rice for the plaintiff.

J. Bridge for the defendant.

Probably, the inconvenient manner in which these sections were draughted occasioned a total change in the phraseology of the statute of February 21, 1785, in which the former statute was revised. By this last statute it is only provided that, when a prisoner for debt shall escape, through negligence or the insufficiency of the jail, the sheriff shall stand chargeable to the creditor, leaving the nature of the remedy, and the measure of damages, as they were at common law. And a new provision is introduced, where the escape shall happen through the insufficiency of the jail: the sheriff is immediately answerable to the creditor, and he has his remedy over against the county.

We are therefore of opinion that, in an action on the case for an escape of a debtor committed on original process, and not on execution, through the insufficiency of the jail, the dis- ' [ *529 ] cretion * which the jury has, at common law, to assess for the plaintiff the damages which he has in fact sustained, and not to find for him his whole debt, is not limited by any statute. And as the manner in which this discretion has been exercised in this case is not complained of, a new trial is not granted.

Judgment according to verdict. 
      
      
         Colley vs. Sampson, 5 Mass. Rep. 310. —Porter vs. Sayward, 7 Mass. Rep. 377 Burrows vs. Lowder & Al. 8 Mass. Rep. 373.
     