Rawson v. Dole

2 Johns. 454

Opinion

Spencer, J.

delivered the opinion of the court. The common law remedy to proceed against a sheriff for an escape, by action on the case, has been holden not to be taken away by the statute, enabling the party, in whose favour an execution issues, against the body of his debtor, upon his escape to maintain an action for the debt and damages for which he was committed.

If an action on the case had been brought, it might have been inquired, what was lost by the escape, and the jury might have given such damages as they supposed the party had sustained; but in the action of debt, every inquiry of that kind is improper, for the statute has fixed the extent of the sheriff’s liability, that is, for the original debt and damages recovered. As the defendant could go into no circumstances of mitigation, the plaintiff must be confined to the precise amount of the original judgment, with costs; and this is conformable to the case of Bonafous v. Walker.

Footnotes

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Judgment for the plaintiff'

2 Term, 126.