
    DAGUERRE a. ORSER.
    
      New York Common Pleas; General Term,
    
    
      June, 1862
    Escape.—Measure of Damages..
    The Code has not abolished the remedy by action against the sheriff for an escape.
    Where the action is against the sheriff for an escape, and' not against him as bail, the measure of damages is the actual loss or injury sustained by the plaintiff.
    Appeal from a judgment.
    
      This was an action brought by Elizabeth Daguerre, executrix, &c., against John Orser, late a sheriff of the city and county of New York, to recover from him damages for the escape of Benjamin Blagge, against whom the plaintiff had obtained an order of arrest, and who escaped from the custody of the sheriff under that order. It was shown at the trial that Blagge was insolvent, and so continued till the time of his death. The court gave judgment for nominal damages (see our report of the case, 10 Abbotts' Hr., 12, note), and the plaintiff appealed to the general term.
    
      Judah & Dickinson, for plaintiff.
    
      Brown, Hall & Vanderpoel, for defendant.
   By the Court.—Daly, F. J.

The Code has not abolished the action against the sheriff for an escape. It is still an existing remedy, if the plaintiff thinks proper to resort to it. An examination of the complaint shows that the action here is brought for an escape, and not against the sheriff as bail; and, in such an action, the measure of damages is the actual loss or injury sustained by the plaintiff. It was shown that, when final process was issued, the defendant Blagge had no property. It was issued on the 4th of November, 1854. His son was with him from March, 1853, until the 27th of November, 1855, when he died. And the son proved that, during that time, he was living at New Orleans, acting as the agent of others, having no property of his own, and that he died insolvent. Upon the proof, all that could be recovered was nominal damages. (Patterson a. Westervelt,‘-17 Wend., 543.)

The judgment must be affirmed.  