
    Amos Shackford and Wife versus Ichabod Goodwin.
    In an action upon the case against a sheriff for taking insufficient bail, the jury may assess the damages, as they shall estimate the plaintiff’s real loss to have been, owing to the officer’s neglect.
    Case against the defendant, as sheriff of the County of York, ior the neglect of one of his deputies, in taking insufficient bail, upon the plaintiffs’ original writ against one Thompson.
    
    At the trial, which was had at the last October term before Wilde, J., it was in evidence, that Samuel Walts, the defendant’s deputy, arrested Thompson, and returned that he had taken bail. The plaintiffs recovered judgment against Thompson for $ 30.06 damage, and $27.79 costs. Execution upon the judgment was delivered to another of the defendant’s deputies, who returned non est inventus ; whereupon due process was sued out against one Kimball, who was the bail, and judgment was recovered against him for the said sums and costs. Kimball was wholly unable to pay the amount of the judgment or any part thereof; and Thompson had absconded before judgment was recovered against him.
    
      * The defendant proved that Thompson, at the time he was arrested, was destitute of property, and had so continued, being of a worthless and dissipated character ; that, after the arrest, he was in custody a part of two days, and was on his way to prison, when Kimball was prevailed upon to become his bail; that Kimball was then supposed to be of sufficient ability to pay said demand ; that the plaintiffs offered to take Kimball’s note and discharge Thompson, after they had entered their action against Thompson, which Kimball refuséd to give ; and that Kimball, at another time, offered to surrender Thompson in court where the action was pending, and was prevented from doing it by the plaintiffs’ attorney.
    Upon this evidence the judge left it to the jury to assess such a sum in damages as they should be of opinion the plaintiffs had suffered in consequence of the neglect of the defendant’s deputy, and he instructed them, that they were not by law obliged to give the whole amount of the plaintiffs’ said debt and costs in damages, unless they should be of opinion that the plaintiffs had sustained a loss to that amount by reason of the said deputy’s neglect. The jury returned a verdict for the plaintiffs, for $14 damage.
    If, in the opinion of the whole Court, these directions to the jury should be considered wrong, the verdict was to be set aside, and a new trial had ; otherwise judgment was to be entered on the verdict.
    
      Holmes, for the plaintiffs,
    contended, that, in the cases in the books, where the officer is permitted to go into evidence in mitigation of damages, the body of the principal debtor was still within reach of the creditor’s process, who thereby had all the security for his debt which he originally had. But, in this case, the principal debtor has absconded, and the bail, to whom the officer delivered him, turns out to be wholly worthless. The officer should not be permitted to lessen the damages by saying he could * obtain no better bail. It was his duty to hold the principal in custody, until sufficient bail was offered.
    
      Mellen and Mams, for the defendant.
    The action being in case, it was the province of the jury to inquire what actual damage the plaintiffs had sustained by the neglect complained of. They were not obliged to give the whole original demand of the plaintiffs. The question for them to decide was, what the principal debtor’s body was worth to the plaintiffs, as a pledge ; and this was the purport and effect of the judge’s direction. 
    
    
      
      
        Colby vs. Sampson, 5 Mass. Rep. 310. — Weld vs. Bartlett, 10 Mas. Rev. 470.
    
   The Court observed, that they thought this no case for their interference, on account of the smallness of the damages; and ordered

Judgment on the verdict.  