Daguerre v. Orser

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.