
    David Smith against John Hart, Sheriff of Charleston District.
    
      Charleston District,
    
    1802.
    Upon an escape for negligence, if defendant is in on a capias ad satisfacien-dum, the debt becomes the debt of the sheriff; bul if in on mesne process, where the dii« mages are uu-a'xert ained, the jury may give v. hat they think just and reasonable, although it be less than the demand, as in cases of insolvency, or the like, &c.
    Insufficiency of the gaol not a sufficient excuse for a sheriff inan action for an escape»
    SPECIAL action on the case for an escape. Verdict for plaintiff. Motion for a new trial.
    This was a special action on the case against the sheriff for negligently suffering a defendant to escape from gaol, who was in upon mesne process, per quod, the plaintiff lost his debt, &c. in which there was a motion for a new trial, on the grounds of misdirection in the judge (Trezevant) who tried the cause, and also that the verdict was against law.
    The original cause of this action was the value of a horse which Smith had sold to one Currie-, for two hundred dollars. For this sum Currie was arrested and put in prison, but soon after broke gaol and escaped.
    The present was an action against the sheriff of Charleston district, for negligence in permitting this man to escape out of custody. On the trial, the sheriff, by.way of mitigation of damages, in case the jury should be induced to find against him, proved that this horse, which originally cost two hundred dollars, was soon after the purchase sold again as low as ninety dollars, which, it was alleged, was as much as he was worth ;• and, therefore, as Currie was in upon mesne process, and the damages had never been ascertained, the jury might, in their discretion, give what sum they thought reasonable and just, or what they thought Currie was able to pay ; and that this was not like a case where a debtor is in gaol on a capias ad satisfaciendum, and escapes, where the sum becomes the debt of the sheriff, and he becomes liable in numero for the amount; here the jury had a right to judge of all the circumstances, and to give considerably less than the full amount. In short, it was alleged, that in a case of this kind, the jury might take all things under their consideration, and assess the damages against the sheriff in the same manner as between the original parties ; and, indeed, if it appeared that Currie was insolvent, so that the plaintiff could have recovered nothing from him, they might even find a verdict for the defendant.
    The sheriff also offered to give evidence of the insuffi» ciency of the gaol of the district, which he alleged was very insecure ; that he had made many remonstrances to the go- ' vernor against such insufficiency, and it had been frequently the subject of presentments from the grand juries of the district, but all to no purpose. But the presiding judge refused to admit this latter testimony, as to the insufficiency of the gaol, on the ground that if such excuse was permitted in law to exonerate a sheriff for an escape, there would be no such thing as responsibility in the sheriff’s office: and the more so, because it was admitted that there was one secure room in the gaol, where he might have been confined. And as to the quantum of damages, the judge charged the jury, that it had not been proved in this case that Currie, the defendant in the action, had proved insolvent: the original debt sworn to and proved was, therefore, the true measure of damages ; the ninety dollars, the sum the horse sold for after he was abused and worn down, ought not to be a rule in this case, though he admitted there were cases on mesne process where a jury might give less, if the circumstances of the case would warrant it, as in hard actions, or where the defendants were in insolvent circumstances, &c. The jury, however, gave a verdict for the full value of the horse.
   The Judges,

after hearing the arguments for and against this motion, were of opinion, that the presiding judge was correct in his opinion on both grounds, in his charge to the jury. That there is this distinction between a defendant in custody on a mesne process, and on a capias ad satisfa-ciendum ; in the former case, where the damages are unas-certained, the jury may take all the circumstances of the case into consideration, and give less than the sum demanded ; but in the latter case, upon the capias ad satisfaciendum, the debt being ascertained on record, it becomes the deht of the sheriff, and he is liable for the amount in case of an escape ; although in the former case the jury may, if they please, give the whole demand.

¶§,'j^s jjurnf. ^ Bast, s,~• 2 Dnvnf & East, 126. ;»

on the ground of the insufficiency of the gaol, were of opinion, that the testimony offered to be given to the jury, was very properly rejected by the judge ; because, if testimony of this kind was once permitted in favour of a sheriff, it would be opening a door for sheriffs and their officers, and gaolers, for making excuses without end ; for which reason the law is clear, that it is no legal excuse. S Henry Blackstone's Reports, 108. And what strengthens this doctrine on the present occasion, is, that there was one secure room, where the defendant in the original action might have been confined. they

Rule for new trial discharged.

Present, Grimke, Bay, Johnson, TRezevant and Brevard.  