
    Faulkner et al. vs. The State, use of Bartley.
    in an action against a constable for an escape, on mesne process, the causo of action in the original suit, the issuing and delivery of the warrant to him, the arrest and escape, must ho proven, unless admitted by the pleadings.
    The presumption is that the plaintifflost the entire debt by the escape, and the measure of damages against the officer is the amount of the original debt.
    The plaintiff need not show that the debtor was in solvent circumstances, and that the debt could have boon made out of him.
    The defendant may, however, prove, in mitigation of damages, that the debt could not have boon made out of the debtor.
    
      Every allegation in the declaration, not denied by the defendant, stands admitted on the record.
    Where the defendant sets up affirmative matters, in his pleas, which, if true, lie pecia, liarly within his own knowledge, the onus probandi is upon him.
    
      Writ of error to the circuit court of Pulaski county.
    
    This was an action of debt on the official bond of a constable, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. Clendeniu, one the. circuit judges.
    The suit was brought in the name of the State, for the use of David Bartley against Jacob Faulkner, constable of Big Rock township, in said county, the principal in the bond, and John Hutt and Thomas Thorn, his securities.
    The declaration set out the 'bond, its condition, and assigned as a breach thereof, that Bartley held a due-bill on Michael’ Fanning for $60; and for the recovery thereof, sued out from before J. Gould, a justice of the peace of said township, a warrant, commanding that Fanning be taken and brought before said justice, forthwith, to answer the complaint of Bartley. That the warrant was placed in the hands of Faulkner, as constable, and that, after arresting Fanning, he permitted him to escape, and go at large out of his custody, and did not have him before the justice as commanded, &c.
    The defendants pleaded four pleas in bar of the action, in substance, as follows:
    1st, That Faulkner did not permit Fanning to escape, and go at large, out of his custody, without the leave of Bartley, as charged in the declaration, &c.
    2d, That Fanning did appear before the justice, according to the exigency of the warrant, &c.
    3d, That the defendants, after the arrest of Fanning, by virtue of the warrant, and before the day of trial, paid Bartley the amount of the due-bill, interest, and costs, and that Fanning was thereby fully and freely discharged, &c.
    4th, That Cocke, as attorney lor Bartley, after the arrest of Fanning, and before the trial, compromised the suit for Bartley.. and agreed that John'P. Burton might pay the debt, interest, and costs; and received Burton as paymaster thereof, and thereupon discharged Fanning — and that Burton then and there satisfied the debt, interest, and costs, with Cocke as Bartley’s attorney, &c. The first two pleas concluded to the county, and the last two with a verification.
    The plaintiff took issue to the first -two, and replied to the last two, denying the truth of the matters set up in them, to which the defendants took issue.
    The cause was submitted to a jury, who, after hearing the evidence, found for the plaintiff, and assessed the damages to $73 12J: and the judgment of the court was rendered accordingly.
    The defendants moved for a new trial, on the ground that the verdict was contrary to law and evidence; which the court overruled; the defendants excepted: and filed a bill of exceptions, setting out the evidence, from which it' appears:
    “The plaintiff proved that Faulkner admitted that Fanning was in his custody, and that he escaped from him, about the time mentioned in the declaration. It was further proven that he had not been here since his escape, and this was all the evidence introduced.”
    The defendants brought the case to this court by a writ of error, and assigned as error, that the court below overruled their motion for a new trial.
    Hempstead & Johnson, for plaintiffs.
    In an action for escape on mesne process, the cause of action in the original suit, and the issuance and delivery of a writ to the officer, must be proved. 1 Saund. PI. & Ev. 481. Alexander vs. Macauley, 4 T. R. 61J. 'Webb vs. Herne, 1 Bos. & Pul. 281. S. C. 2 Esp. Rep. 671. Slo-man vs. Herne, 2 Esp. Rep. 696. Baclcus on Sheriffs 153. 2 Slarkie Ev. 736 — '741. Watson on Shatiffs 130 — 131. Gibbon vs. Goggon, 2 Campbell Rep. 188. 2 Phillips on Ev. 394.
    No more can be recovered than the plaintiff has actually lost, in consequence of the escape, and it was indespensable, therefore, to prove that the debt could have been made out of the defendant in the original suit, and that it was lost in consequence of the escape, before he could recover any thing more than nominal damages. Potter vs. Lansing, 1 J. R. 215.' Russel vs. Turner, 7 J. R. 189. 2 Stark. Ev. 740. Rich vs. Bell, 16 Mass. Rep. 299. 1 Saund. PL & Ev. 483. 2 Bing. 317.
    The jury do not find the assignment of ihe breach to be true and assess the damages thereon, nor is the judgment for the penalty of the bond, as required by law: both are essential,- in all actions on penal bonds. Rev. Stat. c. 112, sec. 5, 6, 7, and 8. Phillips vs. Governor, 2 Ark. Rep. 390.
    Tkapnahl & Cooke, contra.
    The only question is, upon' whom1 was the onus as to the extent of damages.'
    Upon an escape on final process by our statute, as well as common law, the standard of damages was the whole amount of the judgment and costs. For ah escape on mesne process, the damages are governed by the actual damage sustained: prima facie, the debt is the standard, and contradictory proof must come from defendant,' and this is well settled. Patterson vs. Westervelt, 17 Wend; 545. Potter vs; Lansing,\l John 215. Russel vs. Turner, 7 Jo'hn. 189. Smith vs. Hart, 2 B. 394. Shackelford vs. Goodwin, 13 Mass. 189. Eaton vs. Ogin,2 Greenleaf 46. Clark vs. Smith, 9 Gorin. 379. State Treasurer vs. Weeks, 4 Verp. 215. Duncan vs. Klinefelter, 5 Watts 141 — 4. Young vs. Ilasmer, 11 Mass; 89. Kellog vs. Monro, 9 John. 300.
   Johnson, C. J.,

delivered the opinión of the court.

It is contended by the plaintiffs in error that the court below erred in overruling their m’otion for anew trial. They object that the plain tiff did not make out such a case as to entitle him to a recovery. One of their grounds of objection, and the one upon which' they seem chiefly to rely, is, that he did not show that the defendant in the original action was in solvent circumstances, and able to pay the amount recovered against him. In an action against the sheriff for an escape on mesne process, the cause of action in the original suit, the issuing and delivery of the writ to the defendant,-' And the arrest and escape must be proved. There must be a debt due to the plaintiff, by the party arrested, at the time of the arrest. Alexander vs. Macauley, 4 T. R. 611. White vs. Jones, 5 Esp. 160: and the same cause of action must be proved, as the plaintiff has stated in his declaration. This is. the law in actions for escapes againsts sheriffs, and the same rule prevail in suits against constables. The first question is, upon whom does the onus lie? Does it devolve upon the plaintiff to show the ability of the defendant in the original action to pay the debt, or is it a mere right and privilege of the defendant to prove his inability to do so, in mitigation of damages..

In Shackelford vs. Goodwin, 13 Mass. Rep. 187, which was an action against the sheriff for taking insufficient bail on mesne process, against one Kittridge, where the rule of damages is exactly the same as in case for an escape on such process, the judge directed the jury to allow the plaintiff the whole amount of the judgment in the original suit, with interest,.unless the defendant should prove beyond all doubt that Kittridge was a vagabond and worthless. On motion for a new. trial, the ..ourt said, in respect to that direction, “more doubt has been raised in our minds by the last objection. But here again, the benefit of the judgment to the whole amount of it, is to be presumed lost by the negligence of the officer. The defendant might have repelled this presumption and reduced the damages. But the evidence for this purpose must be suggested and produced on his part. It is not sufficient for him to say negatively, that it did not appear that the principal had property. More than this was necessary to raise a presumption.for him that the judgment was of no-value. Young vs. Hazemar, 11 Mass. R. 89. Also, i'n the case of Kellogg vs. Monroe, 9 John. R. 300, which was an action on a jail bond for the escape of the defendant from the limits, he being on the limits under a committitur, upon the application of his bail, the defendant here proved that the original defendant had no other property than a cow, worth 16 dollars, and the judge directed the jury to find that amount for the plaintiff, which they did. On motion for a new trial on the ground-that nominal damages only should have been assessed, the court said, that the plaintiff could recover more than nominal damages was too plain for discussion. He is entitled, prima facie, to recover his whole debt, which is presumed to be lost by the escape; and it could only have been reduced down to the sum found by the verdict, upon the evidence given, that if the party had not escaped, there was no ground to consider that any greater sum could'have been recovered by the coercion of confinement. The case of Godefroy vs. Jay, 5 Moore & Paine 284, is also a case strong in point.

In that case Godefroy had been sued by one Dubois for negligently driving a gig over his child; and he retained lay,,an attorney, to defend, who did not even interpose the general issue. Judgment of £30 10s. passed, therefore, by default, which Godefroy paid, with £5 sheriff’s fees. In an action against the attorney for this negligence, there being no proof by the plaintiff that he was not guilty to the full amount recovered, Tindall, C. J., who tried the -cause, recommended to the jury a verdict for only nominal damages. They, however, found for the plaintiff £45. Yet the court refused a new trial, and Chief Justice Tindall and Mr. Justice Alderson, both ground themselves on the idea that it lay with the defendant to reduce the damages by proving the guilt of his client. These cases, with many others, some of which hold a contrary doctrine, were collected together and carefully weighed and compared by Mr. Justice Cowen in the case of Patterson vs. Westervelt, 17 Wend. 545, ’46, ’47, and ’48; and after mature deliberation, it was his opinion that the onus lay upon the defendant.

We have carefully reviewed all the cases which could have any analogy to the one before us, and from all the lights that they afford, we are forced to the same conclusion. We are, therefore, clearly of opinion that'this objection is not well taken. But the question still recurs, did the plaintiff make such a showing as would entitle him to a recovery?

It is a familiar and well settled .principle of law that every allegation in the declaration, which is not denied by the defendant, stands as admitted upon the record. In this case the defendants interposed their four several pleas in bar of the action. In the first thejr positively deny the escape of the defendant in the original action. This is a direct response to a material allegation, and it being a negative plea, throws the onus upon the plaintiff. The three .other pleas ar.e affirmative, and set up matters which, if true, lie peculiarly within the knowledge of the defendants, and consequently the burthen of proof deyolved upon them. In this attitude of the pleadings, the proof of the plaintiff was narrowed down to the single fact of the escape. This he has established by the admissions qf the defendant, Faulkner himself. The defendants did not introduce any evidence to maintain the issues on their part, but wholly failed to make any proof whatever. We are therefore clearly of opinion that the verdict of the jury is fully warranted by tiro proof, ant] that the same ought not to be disturbed. Judgment affirmed.  