
    William A. Bensel, plaintiff and respondent, vs. James Lynch, sheriff, &c. defendant and appellant.
    1. A sheriff is not allowed to allege error in the judgment or process, as an excuse for an escape, where the process is regular upon its face.
    2. Where a defendant is arrested by the sheriff, upon an order of arrest, and does not give bail, and no deposit is made instead thereof, the sheriff becomes liable, to the same extent as if he were himself bail, or had made a deposit of the amount required.
    3. And if the defendant does not appear when process is issued against his person, the sheriff, as bail, is liable to the plaintiff for the amount of the judgment, without regard to the insolvency of the defendant in the execution.
    4. Hence, in an action against the sheriff) to enforce that liability, after an execution against the body of the judgment debtor has been returned non est, evidence of the insolvency of the judgment debtor is immaterial-, and-should be rejected.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 15, 1864;
    decided December 16, 1864.
    Appeal by the defendant, from a judgment entered on the verdict of a jury. The facts appear in the opinion of the court.
    
      William Curtis Noyes and A. J. Vanderpoel, for the appellant.
    I. The .complaint in this action presents a case which, prior to the Code, would have been termed an escape on mesne process. For such an escape the Revised Statutes prescribed a remedy, which is still in force. (2 R. S. 437, § 62.)
    
      1. Under this statute the sheriff is made answerable to the creditor in an action on the case to the extent of the damages sustained by him. (Patterson v. Westervelt, 17 Wend. 543.)
    2. The Code has not repealed this provision of the statute. (Code, § 471.)
    3. It was an error, therefore, to exclude the evidence offered as to White’s insolvency. It would have established that the plaintiff had only sustained nominal damages.
    II. The theory of the plaintiff is that this is an action upon an alleged liability of the sheriff as bail for White, by reason of White’s not having given bail according to sections 193 to 1-96 of the Code. (Code, § 201.) If for the purpose of the argument we assume that the sheriff under section 201 becomes liable as special bail, the complaint in this action is not sufficient; it is not adapted to such a case.
    1. It does not allege that 'the sheriff became liable as bail, nor any fact which would show that the plaintiff sought to recover under section 201 of the Code. It does allege that White escaped, thus stating a case under section 62 of the statutes, entitled, “ Of escapes, and the liabilities of sheriffs therefor.” (2 R. S. 437.)
    2. If the pleader has left it in doubt whether he intends to proceed under section 201 of the Code, or under the Revised Statutes, as for an escape, the pleading will be construed most strongly against him. (Slocum v. Clark, 2 Hill, 475. Ferriss v. N. A. Fire Insurance Co., 1 id. 71. Code, § 176.)
    3. Holding the sheriff liable for a fi^ed sum, instead of the actual damage, is upon the principle of charging him with a penalty. The courts lean against a construction, which would charge a person with a penalty, instead of with a liability for actual damage.
    III. If this is to be treated as an action against the sheriff as bail, under section 201, it was competent for the defendant to give evidence of White’s insolvency.
    1. It was not the intention of the legislature, when enacting the Code, to do more than to change the forms of procedure. It was not intended to give new causes of action ; nor to attach new liabilities, nor to give remedies of a nature substantially different from those previously existing. It is reasonable that there should be a distinction in the extent of the liability of one who voluntary becomes bail, and a person upon whom a burden is cast by reason of his official position. The former asks that the prisoner may be discharged, and his own liability substituted therefor. When bail are offered by a defendant, the sheriff is liable to an action by the defendant, if he does not accept them, provided he can show that they were reasonably sufficient. The sheriff, without the power of compelling even an ex parte justification, rejects them pt his peril. After the sheriff has accepted the sureties, under these circumstances, he cannot compel them to justify if excepted to. On his part, is there no neglect of duty. Why should the penalty pf paying the debt of an insolvent be thrown upon him ? (Lovell v, Plomer, 15 East, 320.) When the sheriff is sued for taking insufficient bail, he may show that the principal is insolvent and the plaintiff will be entitled to nominal damages only. (Eaton v. Ozier, 2 Greenl. 46. Weld v. Bartlett, 10 Mass. Rep. 470. Nye v. Smith, 11 id. 188. Shackford v. Goodwin, 13 id. 187.)
    2. According to the practice before the Code, if the defendant did not give bail to the sheriff, the sheriff was bound to keep him in custody, or he became Rabie to an action on the case. This law is still in force.
    3. If he gave hail to the sheriff, it was to the effect that he would appear and put in special hail within twenty days after the return day of the writ. The former was styled bail to the sheriff and the other bail to the action. (1 Burr. Prac. 105.) If this bail was not perfected in due time, the plaintiff could proceed upon the bail bond given to the sheriff, or against the sheriff in the same manner as if no bail had been put in. Section 201 of. the Code did not intend to introduce, as against the sheriff, any new rule of liability. The Code was intended •to change forms of procedure, and not. tp create new liabilities, and no other instance can b.e found in which the Code prescribes a new measure of liability for acts or omissions connected with matters which were attained in another mode before the Code. We have noticed the distinction which existed before the Code between hail to the sheriff and bail to the action. • When the ' sheriff, before the Code, desired to relieve himself from the liability for damages which he might incur by reason of the defendant’s escape, or his failure to perfect special bail, he could do so by putting in and perfecting special bail. The Code intended to perpetuate that practice. Section 201 provides : “ If, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead' thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liabiity by the giving and justification of bail, as'provided in sections 193, 194, 195 and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action. This could be done before the Code. The word “bail,” as used in the first paragraph, section 201, is not limited to the sense in which it is used in section 187; and when it is in the latter clause so limited, the court expressly declare it. It is designated as bail below, bail above, bail in error, and bail in the various’ interlocutory proceedings which may arise, involving arrests and custody. If the sheriff is liable as bail proper, howdoes he alter his liability by putting in and perfecting bail ? But if the analogy to the former practice is maintained, section 201 is easily understood. Again : can it be suggested why there should be any difference between the liability of the sheriff here and in the case of a defendant who having given bail, comes into the custody of the sheriff on a surrender, under section 188 ? In that case, he is undoubtedly liable for the safe keeping of the prisoner, but is only liable for damages on the escape. There is no doubt but the prisoner on mesne process is entitled to the jail liberties. For an escape from the jail liberties when a limit bond has been given, the bail are only liable for damages, and may show insolvency. When White was taken in custody he was entitled to release from confinement upon givng the sheriff a bond for the jail liberties.
    The Revised Statutes provide, (2 R. S. 433, §40 :) Every person who shall be in the custody of the sheriff of any county by virtue, 1. Of any capias ad respondendum, 4. In consequence of a surrender in exoneration of his bail, shall be entitled to be admitted to the liberties of the jail, * * upon his executing a bond to such sheriff and his assigns, as prescribed in the next section.
    Section 41. Form of bond. 1. It shall not be less than double the amount of the sum in which the sheriff was required to hold the defendant to bail, if he be in custody on mesne process, or be surrendered in exoneration of his bail before judgment docketed against him. 2. Execution. 3. Judgment, but no execution. Section 42. The condition. That he will remain a true and faithful prisoner, &c. Section 48. In every suit on the bond the defendants may plead a voluntary return-of the prisoner, &c. and such defendants shall be entitled to make such or any other defense to such suit which might be made by such sheriff to an action against him for such escape. (Code, § 471.) “ Existing statutory provisions relating to actions not inconsistent with this act and in substance applicable to the actions hereby provided,” are not affected by the Code. Under those statutes there never was any question but that the sheriff and bail could prove insolvency. (Patterson v. Westervelt, 17 Wend. 543.) But section 74, which allows an assignment of the bond to be taken by the plaintiff, so that he may sue upon it instead of the sheriff, provides : “2. If such prisoner was confined by virtue of a capias ad respondendum, or upon a surrender in exoneration of his bail, made before or after judgment rendered against him, the plaintiff shall recover only the actual damages sustained by him.” But suppose it is suggested on the part of the plaintiff that he need not bring his suit until after judgment for the escape on the mesne process, and that construing the provisions of the Revised Statutes and Code, the plaintiff establishing the sheriff’s liability as bail, that amount would be conclusive under section 49. The fallacy of this argument is apparent. The rjule as to the extent of the liability would then be dependent on the volition of the plaintiff as to the time when he would commence his suit. If he commences it before judgment, he recovers his actual damages sustained by the escape. For that amount, and that amount only, is the limit bond liable. The prisoner having absconded,' the sheriff cannot get him back into the confinement from which the law required him to release him, and what is there on the plaintiff’s theory, when the defendant is wanted on the final process, to prevent an action against the sheriff on his liability as special bail ? The case may be briefly stated : 1. Defendant in custody. 2. Sheriff is bound to grant liberties. 3. Defendant runs away. 4. Suit on bond, actual damages recovered. 5. No further remedy on the bond, no power or opportunity to control the prisoner. 6. Can the sheriff then be sued as special bail ? At common law the only remedy was by action for an escape. Case only could be brought, even in case of escape from final process. (Rawson v. Dole, 2 John. 454. Thomas v. Weed, 14 id. 255. Littlefield v. Brown, 1 Wend. 401.) In England, and in every state of the Union in which an arrest is allowed,.the rule in a case of this kind is the actual damage. Section 276 shows that tlie Code did not intend to change rules of damage. The court will not intend an escape voluntary. Escape is for neglect of duty.
    IY. The result is, that the evidence as to the insolvency of White should have been admitted, and hence a new trial should be granted.
    
      John E. Parsons, for the respondent.
    I. The affidavits on which the order of arrest was made, made out at sufficient case against White. Had it been otherwise, it would have been wholly immaterial. White acquiesced in the propriety of his arrest; against him the order was a judicial determination to that effect. He not having questioned his liability to arrest, the defendant cannot do so. In an action to enforce their liability, bail cannot raise the question of the liability off their principal to arrest. (Stever v. Sornberger, 24 Wend. 275. Gregory v. Levy, 12 Barb. 610.) A sheriff is never allowed to allege error, either in the judgment or process, as an excuse for an escape; if he arrest the party, he is bound to keep him till he is discharged by' due course of law. (Cable v. Cooper, 15 John. 152.)
    II. The sheriff is sued on his liability as bail. That liability in the case of bail is perfected by the return of the sheriff to the execution against the person, “ that the defendant'could not be found within his county.” (2 R. S. 382, §31, original edition.) It would be more remarkable than just, that the sheriff’s return should fix the liability of innocent bail having no control to compel him to perform his duty; and yet not be sufficient against himself, whose duty it was, in this case for instance, to render White amenable to the process of the court.
    III. The liability of bail is fixed at the amount of the judgment against the principal and interest, unless, as here, where the amount of bail is less than that of the judgment; in which case the liability is fixed at the amount of bail, with interest from the time the right to sue on the bond matures ; here the interest was not allowed-. And the liability of the sheriff, when charged as bail, is the same ; thus excluding the right to offer evidence in mitigation.
    ■ The whole point has been directly decided in this state in two reported and numerous unreported cases, and can scarcely be seriously questioned. (Metcalf v. Stryker, 10 Abb. 12. 31 Barb. 62. Gallarati v. Orser, 4 Bosw. 94.) The latter case went far beyond the position urged, this court holding that where the case was of bail in replevin, and a bond was given with sureties, who failed to justify, that the sheriff was further liable as on the form of undertaking required in replevin, for the return of the property; and so could not discharge his liability by a surrender of the debtor. This case, though reversed" on other grounds, in the Court of Appeals, expresses the rule on the point in question in terms which have never been doubted. It seems unnecessary to say a word in support of so self-evident a proposition. It will not be disputed that the liability of bail is as contended. Bail can only discharge themselves “ by paying the debt and costs in the original action to the extent of the bail bond, (Dougl. 330; Cowp. 71,) and also the costs in the action .on the bond.” (1 Arch. Pr. 101.) (1 Burrill’s Practice, 396. Treadwell v. McKeel, 2 John. Cas. 340. Hale v. Russ, 1 Greenl. 336. Champion v. Noyes, 2 Mass. Rep. 484. Harrington v. Dennie, 13 id. 94. 1 Chitty on Pl. 110. Levy v. Nicholas, General Term Superior Court, Jan. 1863.) And not only has the liability of the sheriff been uniformly held to be the same, and evidence offered in mitigation been rejected. (Gregory v. Levy, 12 Barb. 610. Simmons v. Bradford, 15 Mass. Rep. 82. Seeley v. Brown, 14 Pick. 177. Heppel v. King, 7 D. & E. 370. Sartos v. Merceques, 9 How Pr. 188, Seaver v. Genner, 10 A 66, 256.)
    But it is impossible to . give any other signification or construction to the statute : “ If, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail.” (Code, § 201.)
   By the Court,

Garvin, J.

This case was tried before a justice of this court and a jury, on the 15th of March, 1864. A verdict was found for the plaintiffs for the sum of $7000, under the direction of the court, to which the defendant duly excepted. The plaintiff claimed to recover of the defendant, alleging in his complaint: That one Phin White was arrested hy him, and that bail was- not given, nor was a deposit made, whereby the sheriff had made himself liable as bail.

It appeared upon the trial that on the 16th of September, 1862, an order was made by a justice of this court to arrest Phin White and hold him to bail in the sum of $7000 at the suit of William P. Bensel, and directed to the sheriff, James Lynch, which order was made upon affidavits showing that the said White fraudulently contracted the debt for which the action was brought. That at the time the money was obtained from the plaintiff, White represented himself to be a man of property, but was in fact utterly insolvent, making a case under the 4th subdivision of section 179 of the Code. That the sheriff arrested" White under and by virtue of the order; the bail did not justify and no deposit was made instead thereof. It also appeared th,at judgment in that action was obtained for the plaintiff against White, for the sum of $8245.29 on the 24th of December, 1862; That two executions were issued against him, one against the property, and the other against the person of the, defendant. To the first the sheriff made return of no property, real or personal; and to the second, “Defendant not found.”

The defendant moved to dismiss the complaint on the grounds,

1st. That the affidavit did not authorize the granting of the order of arrest, and that the sheriff was not liable.

2d. That the plaintiff was bound, to show affirmatively that White had actually escajoed at the time of the commencement of this action. The motion was denied, and the defendant excepted.

, The defendant offered to show, in mitigation of damages, ■ that at the time of the commencement of this action, Phin White was and still is utterly insolvent, and without any property, real or personal, or any means whatever, out of which any thing could have been collected. This evidence was objected to and excluded; to which ruling the defendant excepted. >

A verdict was ordered for the plaintiffs, and the exceptions directed to be heard in the first instance at the general term. It appears from the sheriff’s certificate that on the 20th of September, 1862, he arrested and had in custody Phin White by virtue of an order of arrest. He was bound to keep him funtil he was legally discharged by due course of law, or permitted to go' at large on bail, or by making such deposit as the statute requires. The sheriff is not allowed to allege error in the judgment or process as an excuse for an escape, where the process is regular upon its face. This was held as early as the case of Cable v. Cooper, (15 John. 152,) and has been reaffirmed in numerous cases, since. This fully disposes of the first ground taken for the 'dismissal of the complaint. The second ground there taken is ,so allied with the main question in the case that it may as well he considered in that connection.

The important question arising in the case is that arising upon admissibility of the evidence offered to show the insolvency of White at the time of the commencement of this action against the sheriff, and ever since.

There can be no question whatever that the sheriff is himself liable as bail. The defendant White was- arrested; he did not give bail, nor was a deposit made instead thereof; whereupon the 201st section of the Code declares “the sheriff shall himself he liable as hail.” These are the precise words of the statute. It would- be a very violent presumption for us to assume that the legislature did not mean, by language so plain, precise, clear and definite, exactly what they have expressed.

It has been decided in the Court of Appeals, in the case of Gallarati v. Orser, (27 N. Y. Rep. 324,) that if the sheriff should discharge the defendant without his compliance with § 201, after arrest, he would himself he liable, precisely as the sureties would have been liable, if a proper undertaking had been given. The same principle was held in this court in the same case in 4 Bosw. Rep. 94, which principle was affirmed in the Court of Appeals. Before the Code, White could have been arrested upon a capias ad respondendum and held to bail, if he had escaped. It would have been called escape upon mesne process. It is therefore contended, on the part of the defendant, that inasmuch as by the 2 R. S. § 62, the sheriff would only have been liable for the damages sustained by the plaintiff, the same rule should still prevail. It is true, that the sheriff would then only have been liable “ to the extent of the damages sustained by him.” (2 R. S. §62.) But a careful examination of the Code, and the several sections contained in chapter 1, of title 7, clearly shows that the provisions embraced in § 201, were intended to apply to a case which prior to the Code would have been termed an escape on mesne process, and to make the sheriff liable to the same extent as if he were himself bail, thus changing the rule of damages. This seems to be the fair and reasonable construction of the section independent of any authoritative exposition ; but as we have seen, it is settled upon authority that the sheriff’s liability is the same as that of bail.; (4 Bosw. Rep. 94. 31 Barb. Rep. 62.) The adjudications upon the subject make it clear what the liability of bail would be if the bail justified as between the bail and the plaintiff in the action. The obligation is in the words of § 187, of the Code : “ That the defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein.” If the defendant should not appear when process is issued against his person, it is a breach of the condition of the undertaking,, and the bail are liable to the plaintiff for the amount of the judgment without regard to the insolvency of the defendant in the execution. (31 Barb. 62.) I was very strongly impressed on the argument of this case with the views of the counsel for the appellant. It seemed a great hardship 'to compel the sheriff to respond in damages to the amount off the judgment; but, further reflection has satisfied me that no injury can happen to the sheriff if he pursues the plain and obvious requirements of the statute. The sheriff has the .power to. hold the defendant in custody until he gives bail, and they justify, or the defendant makes the deposit instead of going bail. The sheriff’s duty is very simple. If he fails to comply with the statutory requirements, he makes himself liable to the same extent' as if he was himself bail, or made a deposit of the amount required; that is, the sum in which the defendant was held to bail, being the amount of the verdict in this action. This question was substantially decided by this court, in the case of Gallarati v. Orser, (4 Bosw. 101,) and very elaborately and ably discussed and decided by Justice Emott in Metcalf v. Stryker, (31 Barb. 62.) In the last case cited, the precise question here presented was raised in the court below; and it was held “ that the sheriff’s liability is fixed by and at the time of the original judgment, and that evidence of the insolvency of the judgment debtor is immaterial, in. an action to enforce that liability, and should he rejected.” This construction of the statute having been settled in our own court, and by the Supreme Court, and it being' in accordance with the manifest interpretation of the statute, we must hold that the plaintiff is entitled to an order for judgment upon the verdict in this action, and that the exceptions on the part of the defendant are not well taken, and must be overruled, with costs.  