Darst v. Duncan

6 F. Cas. 1194, 2 Law Rep. 246

Opinion

HOPKINSON, District Judge,

in delivering the opinion of the court on this point, stated that in examining the cases in England, as well as in the supreme courts of this state and New York, they were found to concur in the doctrine that if a plaintiff in a suit against a sheriff for an escape, brought his action of debt upon the statute, he can recover no more than his debt and costs; and that on the other hand he had a right to recover his whole debt and costs, although in truth he may lose nothing by the escape. If he brings his action on the case for damages, at common law, then he may recover whatever damages he can show he has sustained, although- it may exceed his debt But in such an action the defendant would also be permitted to show any circumstances to prove that a much smaller amount of damages had been sustained by the escape, and even to reduce the verdict of judgment to mere nominal damages. In this case the action was in debt on the statute, and the plaintiff has a right to a judgment for debt and costs, and no more.