
    The State, for the Use of Tillotson, v. Miller, and Others.
    If in a suit on a constable’s bond for an escape, it appear that since the commencement of the suit, the debt for which the judgment was obtained has been paid by a surety of the debtor, the plaintiff ought not to recover more than nominal damages. And the circumstance that the suit was prosecuted for the benefit of the surety can make no difference.
    The omission to assess nominal damages, when substantial justice has been done, is no cause for a new trial.
    
      Tuesday, November 24.
    ERROR to the Vermillion Circuit Court.
   Dewey, J.

The state on the relation of Tillotson sued Miller, a constable, and his sureties, on his official bond. The breaches of the condition of the bond alleged in the declaration are — that Miller having two writs of ca. sa. in favour of Tillotson against one Young, arrested the execution-debtor, and permitted him to escape; and that having two other writs of the same kind between the same parties, and having had an opportunity to arrest the execution-debtor, he failed to do so. Plea, general performance of the condition of the bond, and issue thereon. The parties agreed that under that issue, all evidence should be received that would have been admissible under any state of special pleading proper in the cause. Judgment by the Court, without a jury by consent, in favour of the plaintiff below for costs only. The plaintiff prosecutes this writ of error-.

The facts are the following: Young and one Reynolds executed to Tillotson their two joint and several notes for 70 dollars each; Reynolds was the surety of Young. Tillotson obtained a several judgment, on each of the notes, against Young before a justice of the peace. On these judgments the executions mentioned in the declaration issued, on which Miller, the constable, arrested Young and suffered him to escape. The executions were sued out at the instance of Reynolds,-and for his benefit, by the consent of Tillotson. Tillotson also recovered several judgments, on each of the notes, against Reynolds before a justice of' the peace. These judgments Reynolds caused to be stayed by replevin bail. Before the stay of the executions expired Miller had suffered the escape of Young, and this action was commenced. Reynolds paid Tillotson the amount of the judgments against himself. Young never paid any thing. At what time the payment was made does not appear by the record, but it is presumable it was after the commencement of the action, as the Circuit Court rendered judgment for the plaintiff for costs.

The plaintiff in error contends that the constable and his sureties had no right to avail themselves, in defence of the action, or in mitigation of damages, of the payment by Reynolds of the debt for which Young was arrested, and that therefore the judgment of the Circuit Court should have been for the full amount of that debt. In this we think he‘ is mistaken. Had the action been in case against the constable for the escape, payment of the debt by the execution-debtor would, at least, have mitigated the damages. Russell v. Turner, 7 Johns. R. 189. Payment by a surety of the debtor must have the same effect; and the principle is equally applicable to this action, the real object of which is the recovery of damages. ■ We do not mean to say, however, that had Reynolds paid the debt for which he was Young’s surety before the commencement of the action, it would not have been a good bar. There can be no doubt, admitting the payment to have been made since that time, that it ought to reduce the plaintiff’s claim to nominal damages. If• his right to nominal damages be granted, the. omission to assess such damages, when substantial justice has been done, is no cause for a new trial. Bac. Abr. tit. Trial, L.—1 Burr. 11. 2 id. 664.—Brantingham v. Fay, 1 Johns. Cas. 255.

But the plaintiff in error also contends that this action, though nominally for the use of Tillotson, is really prosecuted for the benefit of Reynolds, and that - the latter has a right to maintain it against the constable and his sureties, in consequence of the escape of Young, for the purpose of recovering the money which he paid as Young’s surety. This position is entirely untenable. Had Reynolds purchased the judgments against Young, and they had remained unsatisfied, he might indeed have used Tillotson’s name for the purpose of enforcing his remedy for the escape; but in satisfying the judgments against himself, which were for the same debts as the judgments against Young, he discharged these latter judgments, and thus, if he did not destroy Tillotson’s legal right of action, he at least reduced his claim to nominal damages. ■‘As well might a surety to a joint and several note contend, that by paying the note he would entitle himself to sue his principal, on the note, in the name of the creditor.

A. Kinney and S. B. Gookins, for the plaintiff.

T. A. Howard and W. P. Bryant, for the defendants.

Per Curiam.

The judgment is affirmed at the costs of the relator.  