
    James Futch v. John Walker.
    Columbia,
    May, 1828.
    In an action against the sheriff for an escape, the solvency or insolvency of the debtor is not, in all cases, the measure of the plaintiff’s damages. Prima, facie, a sheriff, who has been guilty of a voluntary escape, is liable to the whole extent of the debt; and it is only where there are circumstances of extenuation that the jury are authorized to give less.
    In a case sounding in damages, although the jury find for the defendant, when the plaintiff is intitied to a verdict; yet as they are at liberty to give nominal damages, the Court will not always grant a new trial on account of costs. But although in such a case there have been two concurrent verdicts for the defendant, if the presiding Judge misdirected the jury on a material point, a third trial will be awarded.
    Tried before Mr. Justiee'HuGER, at Barnwell, Fall Term 1827.
    This was an action on the case against the defendant, as late sheriff of Barnwell District. The declaration contained several counts, for cancelling the bail-bond of Joseph W. Wood, who had been arrested at the suit of the present plaintiff; for a voluntary escape of the said Wood; and for neglecting to execute successive writs of fi. fa. and ca. sa. against him. A former verdict for the defendant had been set aside; and the case now came on for a new trial. The escape was clearly proved; and much evidence was introduced in support of the other counts, which, under the disposition made of the case by the Court of Appeals, it is unnecessary to detail. There was some evidence of Wood’s insolvency at the time when plaintiff’s judgment against him was signed; but the fact of his insolvency was disputed*
    
      The presiding Judge charged, that the plaintiff was not inti-tledto recover, except to the extent, to which he had been actually injured; and the sheriff was, therefore,, only responsible for as much as Wood was worth at the time of the judgment against him. The jury found for the defendant; and the plaintiff now moved to set aside their verdict, and for a new trial, on ..the ground of misdirection, and that the verdict was contrary to law and evidence.
    Patterson, for the motion.,
    Martin, contra.
    
   Nott, J.

delivered the opinion of the Court.

This was an action on the case for a voluntary escape. The escape was most clearly and satisfactorily proved ; and that it was effected by the consent, and with the permission of the defendant, was v also distinctly established by the evidence. The plaintiff was, therefore, intitled to a verdict; but as there have been two concurrent verdicts for the defendant, if the case had depended altogether upon the evidence, perhaps the Court might not have felt bound to give the party another hearing. In a case sounding altogether in damages, even though the jury may find for the defendant when they ought to have found for the plaintiff, yet as they are at liberty to give merely nominal damages, the Court will not always grant a new trial on account of the costs.

But I do not concur in opinion with the presiding Judge, “ that the sheriff was only responsible for as much as Wood was worth at the date of the judgment.” The sheriff had been guilty of a most gross and unpardonable violation of duty. And the jury were authorized to have given damages against the defendant, to the full amount of the verdict against Wood, by way of punishment for the violation of the highly public trust reposed in him. They are not always bound to go to that extent. They are at liberty, according to circumstances, to mitigate the damages. But they are not to be restrained to the amount of. property which the party may happen to lie worth. A public officer ought to be taught that he is not at liberty to suspend the law with impunity. Prima facie, I think that a sheriff, who has been guilty of a voluntary escape ought to be liable to the whole extent of the debt; and it is only when circumstances of extenuation appear in his behalf, that the jury ought to give less. Certainly it ought not to be inculcated, as a rule of law, that he is responsible only for the value of the property which the party escaping is supposed to be worth.

I am of opinion, therefore, that a new trial ought to be granted.

Motion granted.  