
    *Dan Young versus Joseph Hosmer.
    In an action against the sheriff for talcing insufficient bail, a variance of the name of the plaintiff in the execution against him, and in the scire facias against the bail from Daniel to Dan, did not avail the sheriff.
    In such action, the original judgment is sufficient prima facie evidence of the plaintiff’s debt, subject to be impeached by the sheriff on the ground of collusion or fraud.
    The sheriff may prove, in mitigation of damages, that the original debtor had no property; but this is not to be presumed.
    This was an action of the case against the defendant, as sheriff of the county of Middlesex, for taking insufficient bail, upon the arrest of one Thomas Kitteridge, on mesne process, at the suit of the plaintiff, by one Stephen Reed, one of the plaintiff’s deputies. It appeared that the deputy took one M. R. Bartlet only as bail, and that he had avoided on the scire facias, as had Kitteridge, the prin cipal debtor, on the original suit.
    After a verdict for the plaintiff, taken November term, 1812, before Parker, J., for the original debt, costs, &e., the defendant moved for a new trial on the following grounds: —
    1. That the plaintiff gave in evidence an original writ, and a judgment thereon, in favor of Dan Young against Thomas Kitteridge; but the execution against Kitteridge, as well as the scire facias and judgment against the bail, were in favor of Daniel Young.
    
    2. That the plaintiff gave no evidence of the debt due to him from Kitteridge, other than the original writ and judgment against him.
    3. That it did not appear that Kitteridge had any property or friends, who were able or willing to assist Jiim; but it appeared that he was a transient person, found for a short time in Cambridge, and none of the witnesses knew whence he came or whither he was gone. Wherefore the defendant said that the jury should have been instructed to allow the plaintiff nominal damages only, if any; whereas the judge directed the jury to allow the plaintiff the whole amount of his said supposed debt and interest, unless the defendant should prove, beyond all doubt, that Kitteridge was a vagabond, and worthless.
    
      Bigeloxo, for the defendant,
    supported the objections made at the trial.
    
      Davis (Solicitor-General) and Heard for the plaintiff.
   Per Curiam.

The first objection is, that the original writ and judgment are in favor of Dan Young, and that, in the * execution and in the proceedings against the bail, he is [ * 90 ] called Daniel. This was clearly a misprision of the clerk in issuing a judicial writ, and, being so, might be amended. Besides, it was not necessary for the plaintiff to show the proceedings against the bail, particularly where no evidence was offered on the part' of the defendant tending to show his sufficiency, and where especially, as in this case, one surety only had been accepted. His insufficiency might have been proved in any other way by competent evidence,

The second objection is, that the plaintiff should have been held to prove his original debt against Kitteridge. But we consider the writ and judgment sufficient prima, facie evidence of the debt,■ although the sheriff might have impeached it upon the ground of collusion and fraud.

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.

Judgment on the verdict. 
      
      
        а) Campbell vs. Styles, 9 Mass. Rep. 217. — Burrell vs. Burrell, 10 Mass. Rep. 221
     
      
      
        Weld vs. Bartlett, 10 Mass. Rep. 470.— Walker vs. Haskell, post, 177.— Cæsar vs. Bradford, 13 Mass. Rep. 169. — Dearborn vs. Dearborn, 15 Mass. Rep. 316.—Nye vs. Smith, post, 188. — Phillips vs. Bridge, post, 242. — Rice vs. Hosmer, 12 Mass. Rep. 127. — Shackford vs. Goodwin, 13 Mass. Rep. 187.—Rayner vs. Bell, 15 Mass. Rep. 377. — Mather vs. Green, 17 Mass. Rep. 60. — Brooks vs. Hoyt, 6 Pick. 463.
     