#### Thomas Simmons *versus*Samuel Bradford.

If a sheriff returns on an original writ that he has taken bail, and afterwards refuses to deliver the bond, — in an action of the case by the judgment creditor against the sheriff he shall not show, in mitigation of damages, that the original debtor was poor and unable to pay the debt

This was an action upon the case against the sheriff of *Suffolk,*for the default of one of his deputies. The plaintiff had commenced an action against one *Sargent,*and delivered the writ to the deputy to be served; who returned thereon that he had arrested Sargent, and had taken bail for his appearance. The plaintiff recovered judgment in his said action against *Sargent;*but the deputy never returned the bail bond into the clerk’s office to be filed, nor did he deliver it to the plaintiff, although specially requested. The plaintiff sued out execution on his said judgment, which was delivered to the same deputy; and he returned upon it, that he could not find the body of *Sargent,** nor any goods or estate of his, wherewith to satisfy the execution.

The defendant offered to prove that the only bond taken by the deputy from *Sargent,*was one made in the common printed form of a bail bond, but executed by *Sargent*alone, and containing his name only as obligor, without the name of any bail or surety for him; that the deputy offered to deliver this bond to the plaintiff, when the latter called upon him for the bail bond. He also offered to prove that *Sargent,*at the time of the arrest and ever since, was wholly unable to pay the debt, or any part of it.

On the trial before *Jackson,*J., at the last November term, the evidence thus offered was rejected; whereupon the defendant agreed to be defaulted, and to suffer judgment against him for the sum due on the execution, unless the Court should be of opinion that the said evidence ought to have been admitted.

*Prescott*and Guild, for the defendant.

This is an action of new impression. The only analogous cases are actions against sheriffs for escapes, for false returns, for taking insufficient bail, and actions against bail. The officer’s return is not conclusive, (1) and, in offering the plaintiff the bond which he had taken, the deputy discharged his duty in that respect, as far as was in his power; and if he made a false return, or was negligent of his duty, the plaintiff cannot avail himself of it in this form of action. If the present action is maintained, sheriffs who have unfortunately taken insuffi *82cient bail may be compelled to pay the whole debt and costs, although the bail have their principal to surrender. For in the case of *Sparhawk*vs. *Bartlett,*(2) the Court say that insufficient bail are no bail; and the case of *Cæsar*vs. *Bradford*(3) shows that there is no limitation to this action, and that the privilege of a year is only for the bail.

The present action being case, and not debt, the judgment is only *prima facie*evidence of the damage; and, therefore, the evidence of the insolvency of the principal debtor should * have been admitted. The plaintiff was entitled to the body of his debtor, and to nothing more. That body was here worth nothing, and that is all that the plaintiff has lost by the negligence or misconduct of the deputy.

*Simmons*for the plaintiff.

(1)

4 *Mass. Rep.*498, *Fuller*vs. *Holden.*

(2)

*2 Mass. Rep.*198.

(3)

3 *Mass. Rep.*169.

Jackson, J.,

delivered the opinion of the Court. It is well settled that the defendant, in a case like the present, cannot show, either by way of defence to the action or in ■ mitigation of damages, that the return on the original writ was not true. It is equally clear that the bond, said to have been taken by the deputy in this case, is not a bail bond. There was no *bail,*to whom the principal is supposed to be delivered ; and no *surety,*liable for him in case of his avoidance. The evidence offered on this point, if admitted, would prove that the deputy did not take bail, in direct contradiction to his return; and it was therefore rightly rejected, *(a)*

*We*are, then, bound to consider, in this case, that the deputy did take bail; and that he has refused, either to deliver the bond to the plaintiff, or to file it in the clerk’s office for the plaintiff’s use.

The question is, whether, in such a case, it is competent for the defendant to show, in mitigation of damages, that the original debtor was poor, and unable to pay the debt.

Such evidence would not be admissible on the part of the bail, if the officer had filed the bail bond, and the action had been brought against them; and the officer who has prevented the plaintiff from bringing that action ought to leave him another remedy, at least as good as that of which he has been unjustly deprived. This principle is recognized by Justice *Lawrence,*in the case of *Heppel*vs. *King,*(4) which was cited in the argument; and it is perfectly just and reasonable. The officer, by such a proceed ing, voluntarily assumes the situation of the bail, and is subject to all their liabilities, although he may not have all their privileges.

If this is a hardship upon the officer, he may always avoid it *83by a strict performance of his duty. But there is *not, probably, any greater hardship in this case than what always exists when a surety is required to pay the debt of his principal. W hen the officer returned that he had taken bail, which he knew was not literally true, he must be understood as intending that he woidd himself be the bail, or surety, for the debtor. He stipulated, in effect, with the plaintiff, that the latter should have all the advantage and security which he would have derived from bail regularly and lawfully taken.

We are all satisfied that the evidence, offered in mitigation of damages, was inadmissible; and the plaintiff must have judgment by default, (a)

*Defendant defaulted.*

(a)

*Gardner*vs Hosmer, 6 *Mass. Rep.*325. — *Weld*vs. Bartlett, 10 *Mass. Rep.*470

(4)

*7 D. & E.*370.

(a)

 Vide *Weld*vs. *Bartlett,*10 *Mass. Rep.*470. — *Shackford*& *Ux.*vs. *Goodwin,*13 *Mass. Rep.*187.