
    BARNES a. WILLET.
    
      Supreme Court, First District;
    
    
      General Term, September, 1861.
    Liability of Sheriff.—Escape of Insolvent . Debtor.
    The insolvency of the debtor is no bar to an action against a sheriff, founded on 2 Rev. Stat., 437, § 63, for the debtor’s escape.
    It is erroneous in such an action to set up in the answer the insolvency of the debtor in mitigation of damages.
    Appeal from an order sustaining a demurrer to portions of an answer.
    This was an action brought against the defendant, as sheriff of the city and county of New York, to recover the amount of a debt owed to the plaintiffs by one Jacob Cohen, who escaped from the custody of the sheriff. The defendant put in an answer, averring that the escaped debtor had been' in some respects wronged by the plaintiff, and that he was insolvent, and could not have paid the debt, even had he been detained longer. -
    The plaintiff demurred to so much of the answer as set up such a defence.
    The demurrer was sustained at special term (see our report of the case, 11 Ante, 225); and from this decision defendant appealed. . ‘
    
      Brown, Hall & Vanderpoel, for the appellant.
    —I. At the common law, the only remedy for an escape was by an action on the case, and the defence set np by the answer in this case would undoubtedly have been good. (Rawson a. Dole, 2 J. R., 454; Thomas a. Weed, 14 Ib., 255; Littlefield a. Brown, 1 Wend., 401.)
    II. The statute did not take away the common-law remedy. (Barry a. Mandell, 10 J. R., 563; Jansen a. Hilton, Ib., 549; Rawson a. Dole, 2 Ib., 454.)
    III. By 2 Rev. Stat., 437, § 63, the plaintiff might recover “the debt,” “damages,” or sum of money “for which such prisoner was committed;” but in order to obtain the benefit of the statute, it provided that an action of debt must be brought.
    IY. The common-law remedy by action on the case not being taken away, the plaintiff undertook to avail himself of that remedy, and the defence was properly interposed.
    Y. The judge thought he might consider this an action of debt, under the statute. But as there is no such averment whatever in the complaint, and as it is, according to the old forms, clearly an action on the case, it was error to sustain the demurrer to this defence.
    YI. Debt for an escape was an action for a penalty—it was a “hard action,” and not entitled to favor with the court. Where the complaint is susceptible of a construction which will give to the plaintiff his actual damages, the courts will so construe it, rather than in favor of inflicting a penalty. In England and Massachusetts, debt for escape can no longer be maintained. The Code has produced the same effect. (Chase a. Keys, 2 Gray, 214; Arden a. Goodacre, 5 Law & Eq., 436; S. C., 11 Com. Bench, 371.)
    VII. The matters set up were competent in mitigation of damages.
    
      Albert Mathews, for the respondent.
    —I. The defendant is sued specifically in his capacity of sheriff. The action for the escape of this prisoner, so held on final process, is in the nature of an action of “ debt,” under the provisions of the Revised Statutes. Neither the amendment of the statute, nor the provisions of the Code of Procedure, have altered the law, or modified the right, or substantially changed the remedy of the plaintiff in the premises. (1 Rev. Laws of 1813, 425, § 19 ; Laws of 1847, ch. 390, § 2; Code, §§ 276, 291, 419, 468, 471; Hutchinson a. Brand, 5 Seld., 209; see, also, 4 Bosw., 384, 643.)
    H. Where the escape of a prisoner is from mesne process, the action must be in form in the nature of “trespass on the case.” If the escape is from final process, to enforce payment of a judgment, the action may be the same. In such case, the amount of the judgment and interest are prima facie the measure of the “ damages sustained.” Such recovery may be reduced by proof of less damages sustained by the plaintiff. Insolvency of the prisoner is competent proof on that subject. (2 Rev. Stat., 437, § 62; Code, § 276; Patterson a. Westervelt, 17 Wend., 543; Latham a. Westervelt, 26 Barb., 256; Loosey a. Orser, 4 Bosw., 391.).
    III. But where the escape is from final process to enforce payment of a judgment, and the sheriff is sued, as such officer, for the escape, and the form of action adopted is in the nature of “ debt,” then the rule of damages is otherwise. Damages in such an action are in the nature of a statutory penalty. They are fixed and limited by a positive statute. The measure thereof is the “ sum of money for which such prisoner was committed.” The amount of the recovery cannot he diminished by showing less damages sustained. (2 Rev. Stat., and Laws of 1847, and Code, § 276; Bonafous a. Walker, 2 T. R., 126; Rawson a. Dole, 2 Johns., 454; Van Slyck a. Hogeboom, 6 Ib., 270; Thomas a. Weed, 14 Ib., 255; Littlefield a. Brown, 1 Wend., 401; Hutchinson a. Brand, 1 How.-Pr., 73; Renick a. Orser, 4 Bosw., 384; McCreery a. Willett, Ib., 643; Barnes a. Willett, 11 Abbotts’ Pr., 225.)
    IV. The matters stated being , unavailable either in bar ot the action or in mitigation of damages, the demurrer thereto should be sustained, and that part of the answer overruled, with costs. (Kneedler a. Sternburgh, 10 How. Pr., 67.)
   By the Court.—Ingraham, J.

—It is not necessary to decide here whether proof as to the insolvency of the debtor can be given in evidence in mitigation of damages. That question must be decided on the trial when the evidence is offered.

It is set up in the answer in mitigation of damages. It is clearly no bar to the action, and should not have been pleaded as such. As matter of mitigation, it is improperly in the answer, and shows no defence. As a matter of pleading, it was erroneously set up in the answer.

Order appealed from affirmed, with costs. 
      
       Present, Clerke, P. J., Ingraham and Leonard, JJ.
     