
    Aaron Brooks versus Epaphras Hoyt.
    In case against a sheriff for a voluntary escape of a debtor committed on mesne process, the defendant may prove, in mitigation of damages, that the debtor was unable to pay the debt.
    Case against the defendant as sheriff of the county of Franklin. The declaration alleged that one Horsley was arrested at the suit of the plaintiff and committed to the jail in Greenfield, of which the defendant was the keeper, and that the plaintiff afterwards recovered judgment against him for the sum of 99 dollars, but that before the rendition of the judgment the defendant voluntarily permitted him to escape, by means whereof the plaintiff lost his debt. In the court below the defendant was defaulted, and the question of damages was submitted to the court. The defendant offered evidence to prove that Horsley was poor and wholly unable to pay any part of the judgment recovered against him. The plaintiff objected to the admission of this evidence in mitigation of damages, and contended that the true measure of damages was the amom t of the judgment. The court however admitted the evidence, and assessed only nominal damages ; whereupon the plaintiff filed his exceptions.
    
      Sept. 24th.
    
    
      Sept. 26th.
    
    Bigelow, for the plaintiff.
    This being the case of a voluntary escape, the policy of the law requires that the officer shall be answerable for the whole debt. Our statute allows a creditor to imprison his debtor with the expectation of thus enforcing payment of his demand, for the debtor may be apparently insolvent when he is not really so. But if the officer may at his pleasure release the debtor from jail and be subjected to only nominal damages, the statute is virtually repealed. Simmons v. Bradford, 15 Mass. R. 82; Patten v. Halsted, 1 Coxe (N. Jers.) 277; Powell v. Hord, 1 Str. 650; O’Neil v. Marson, 5 Burr. 2812; Moses v. Norris, 4 Maule & Selw. 397.
    
      Neiocomb, contra,
    
    cited 2 Chit. PI. 299, note k ; 1 Williams’s Saund. 38, note 2; 3 Stark. Ev. 1341 [see 5th Amer. Ed. vol. 2, p. 740,] and Metcalf’s note.
   Per Curiam.

The distinction attempted to be made between a voluntary and a negligent escape, as it respects damages, is not supported. The one may be as excusable as the other. In all actions of the case, the question is, what is the amount of damage sustained. There is one case against a sheriff (Simmons v. Bradford) where the debt was considered to be the amount of damages. That was under peculiar circumstances, the sheriff having admitted that he took a bail bond and having refused to deliver it to the creditor.

Judgment affirmed. 
      
       See Richardson v Spencer, 6 Ohio R. 14; Young v. Hosmer, 11 Mass. R (Rand’s ed.) 90 note a; Nye v. Smith, 11 Mass R. (Rand’s ed.) 190, note a.
      
     