#### * Nathan Nye *versus*Stevens Smith.

In an action of the case against a deputy sheriff for tailing insufficient bail, the evidence was that the bail had been committed on an execution issued on a *scire facias,*and had sworn out of jail; but that the principal was very poor, and had always been subject to be taken in execution. The Court held that the plaintiff was entitled to nominal damages only.

This was an action of the case against the defendant, a deputy sheriff for the county of *Kennebeck,*for taking insufficient bail, upon an original writ in favor of the plaintiff against one *Samuel Aspinwall.*

The declaration alleges the suing out of the writ and the delivery of it to *Smith;*an arrest by him of Aspinwall; the taking of one *Benjamin Follansbee*as sole bail; the recovery of judgment, and the delivery of an execution thereon to one *Hazeltine,*another deputy sheriff for the same county, who returned it with a *non est inventus ;*the suing out a *scire facias*against *Follansbee,*on which he was committed to prison; and his discharge therefrom on taking the poor debtor’s oath. And the plaintiff avers that, at the time *Follansbee*became bail as aforesaid, he was, and ever since has .been, a poor man, and not sufficient for the said purpose; and that *Smith,*unmindful of his duty in that regard, after arresting *Aspin wall,*permitted him to go at large, without taking sufficient bail, by reason whereof the plaintiff has lost his debt and costs, to gether with the costs of his *scire facias.*

The defendant pleads in bar that, at the time *Follansbee*became bail, he had sufficient estate to pay all damages and costs, to which he might be liable, &c., and traverses his, the defendant’s, having, unmindfully of his duty, permitted *Aspinwall*to go at. large, without taking sufficient bail, &c.; — upon which issue is taken and joined.

The action was tried upon the issue so joined, at the last October term in this county, before *Thatcher,*J., and a verdict taken for the plaintiff for the whole amount of the original debt, with interest, and the costs of the first action and of the *scire facias;*subject to be set aside or amended, according to the opinion of the Court upon the evidence produced at the trial.

The plaintiff proved the facts stated in his declaration, as to the issuing, serving, and returning, of his writ against [ * 189 ] * *Aspinwall,*the rendition of judgment and issuing ol execution against him, and the return of *non est inventus*upon it; and that the defendant took but one person as bail, against whom *scire facias*had issued, and who had been committed *177to prison upon an execution issued thereon, and had been liberated therefrom on taking the oath prescribed for poor debtors.

The defendant proved that Aspinwall, during the whole time referred to, although a very poor man, was at home about his business, and never avoided an officer who might have process against him; that the execution against him was delivered to *Hazeltine*but two or three days before it was returnable, and that he had no convenient time to serve it after it was handed to him ; and that *Follanshee*was owner of a farm, and in good credit, at the time he became bail for *Aspinwall.*

*Todd,*for the defendant,

objected to the verdict. The case of *Long*vs. *Billings*(1) was decided since the fact took place for which the defendant is charged in this action. It was then supposed that one sufficient surety was enough on a bail bond. *Aspinwall*is now able to pay his debt, and the plaintiff ought rather to look to him, than thus to entrap an officer. The utmost that he can claim is the costs of his *scire facias,*if, indeed, he is entitled to any thing more than nominal damages.

*Whitman,*for the plaintiff,

relied on the decision in *Long*vs. *Billings,*as determining this case; and he contended that it was not competent for the defendant to give evidence in mitigation of the damages, the plaintiff being entitled to all he had lost, which is the original debt and all his costs; or it is nothing.

(1)

9 *Mass. Rep.*479.

*Per Curiam.*

The defendant is charged in this action for having taken insufficient bail in an action heretofore instituted by the plaintiff. The question reserved upon the trial respects exclusively the amount of damages to which the plaintiff is entitled upon the evidence. This is not the case of the original debtor’s ibsconding. He has been always * subject to be taken [ * 190 J m execution. As to him, then, the creditor has had all the remedy he would have had if the bail had been above all objection. And it is competent for an officer to show that the creditor has not suffered from his neglect. In this case, the plaintiff is entitled to no more than nominal damages. Pursuant to the agreement of the parties at the trial, the verdict is to be amended as to the damages, which are to be assessed at one dollar; and judgment is to be entered accordingly, *(a)*

(a)

*Phillips & Al.*vs. *Bridge & Al.*post, 242.— *Rice & Al.*vs. *Hosmer,*12 *Mass Rep.*127. — *Dearborn*vs. *Dearborn,*15 *Mass. Rep.*116. — *Weld*vs. *Bartlett,*10 *Mass Rep.*470. — *Shuckford*& *Ux.*vs. *Goodwin,*13 *Mass. Rep.*187. *Simmons*vs. *Bradford,*15 *Mass. Rep.*82.