
    Jones vs. Blair, Sheriff.
    Although the Sheriff may, in an action on the case against him for an escape, prove the insolvency of the defendant to reduce the damages, yet he must also shew some other circumstance in excuse or mitigation, or the Jury must give damages to the amount of the whole debt.
    Butin an action on the ease against the Sherifi for taking insolvent surities to a prison boundsbond, where the defendant was committed under a Ca. Sa. the solvency of the defendant cannot be enquired into, as the only measure of damages is the amount due on the execution, under which the defendant took the bounds.
    This was an action on the case against the Sheriff for not taking solvent sureties on a prison bounds bond, given by one Crowder who was in confinement under a Ca. Sa. issued in a suit of the Plaintiffs against Crowder. Proof was offered of the insolvency of the sureties as well as of Crowder, at the time he gave the bond.— Waites, J, who tried the cause, charged the Jury, that though the Sheriff was answerable for the solvency of the sureties, yet if the principal, Crowder, was himself insolvent, that the Plaintiff had sustained no damage, and they might find for the Sheriff Verdict for the defendant. The Plaintiff appealed.
    Miller, for the appeal.
    Williams, contra.
   Curia, per

Nott, J.

It has been decided in the cases of Brown, vs. Belcher, and Boyce, vs. Barksdale, that in an action on the case against the Sheriff for an escape the Jury were not bound to give a verdict for the whole amount of the debt due to the Plaintiff, but might give such damages as they supposed the Plaintiff may have sustained by reason of the escape. But even in such cases unless the Sheriff can shew some circumstance in excuse or mitigation, I think the Jury ought to give the whole debt, and not to speculate upon the probable chance which the Plaintiff had of recovering the whole, if the escape had «not taken place. But in this case the Plaintiff stands upon still higher ground. A person who is taken on a Ca. Sa. is required to give satisfactory security to the Sheriff, that he will within forty days render to the Clerk of the Court a schedule on oath of his whole estate, or so much thereof as will pay and satisfy the sum due on the execution by force of which he is confined, and the Sheriff is made responsible for the solvency of such security. If, therefore, the Sheriff takes good security, as he is required to do, the Plaintiff will recover the whole debt; because in an action on the Bond, the amount due on the execution is the measure by which the damages are to be estimated for the non performance of the condition. Smyth vs Wigfall, 2, Nott and M‘Cord, 135. And if the Sheriff is responsible for the solvency of the surety, he must be liable to the same extent.— Whether the person was insolvent or not, was a question which could not enter into the consideration of the case. To hold the insolvency of the party to be a justification for the Sheriff, would amount to a license to take mere nominal security in all cases of this sort. I am of opinion that the presiding Judge erred in his instructions to the Jury, and that a new trial must therefore be granted.

New Trial granted. 
      
      
         Vide ante, 141.
     