BY an order of the county court of Caldwell, John Bernard wastappointed jailer, and-thereupon, together with M.nA. Rucker, James Morse and John Rucker,
To this declaration Bernard, &c, demurred, and the ^emurrer being joined by the plaintiff in the court be-l°w; was overruled by that court. After the demurrer was overruled, the defendants in that court failing to answer, judgment was entered against them, and a writ of inquiry awardedf'to assess (he damages. On executing the writ of inquiry, the plaintiffs introduced ns evidence, a receipt purporting to he signed by 'John B. ■^ernar^i G. C. and importing an acknowledgment by him, of his having received of a deputy sheriff of Caldwell county, the body of James Martin, who had keen arrested by the said deputy, under a ca. sa. froir. ^le clerk’s office of Logan circuit court, in favor of Gabriel Lewis, &c. against said Martin, for ninety-one dollars and forty-one cents, with interest and costs, &c. The receipt was objected to by the defendants; but their objections were overruled, and the receipt read in evidence.’ No other evidence was offered Co the ju-rJb anc* ^he counsel of the defendants moved the court to instruct the jury, that from the evidence they should find nominal damages- only; but the motion was over-rulcdi
The jury assessed damages to the amount of one huit-dred and sixteen dollars and twenty-five cents, and judgment was thereon finally rendered in favor of the plaintiff. From that judgment the defendants have appealed to this court.
It is assigned for error, 1st, That the court erred in its decision on the demurrer to the declaration; 2dly, that the court erred in permitting the receipt introduced by the plaintiff in that court, to go in evidence; 3dly, that the court erred in refusing to give the instructions, as asked for by the defendants, to the jury.
The decision upon the demurrer, we think, is correct. The bond upon which this action is founded, is in substance such an one as is required to be taken from jailers, and the act of this country gives to every person injured by the acts of a jailer, the right to sue upon the
Wq! differ, however, in opinion, from the court below, as tokbé. '¿propriety of permitting the receipt introduced foy the plaintiff, to go in evidence to the jury. • If it had been proved to have been given by Bernard, it would, no doubt, have been competent evidence upon the trial of an issue involving the fact, to prove that Martin had been received in custody by Bernard, under the execution therein referred to; but, to be evidence for that purpose, its execution by Bernard ought to be prpved by evidence aliunde, and no such evidence appears to have been produced on the trial. In this case, there is, however, no issue which required the introduction of evidence of that sort. • By permitting judgment to go against them by default, the defendants had admitted every fact which the receipt was calculated to prove, and that admission was conclusive on the jury, without being supported by evidence. Whilst we would, therefore, admit that the receipt ought not to have jjqen permitted to go in evidence to the jury, as it we.nt merely^to prove a fact admitted by the pleadings,, we ■should not, for'that cause, be disposed tp reverse the judgment of the court below.., , " ,
If, therefore, the actual damage sustained by Lewis, &c. forms the correct criterion of damages to be recovered in an action of this sort, it must necessarily follow, that the instructions ought to have been given to the jury; for it is unquestionably incumbent on a plaintiff to prove the extent of his damage* and if Lewis,-&c. have failed to do so, nominal damages only should have been assessed by the jury on the writ of inquiry;
But the question occurs, ought the jury, in estimating damages, to have been governed by the amount of damage actually sustained by Lewis, &c.?
No satisfactory answer to this question is tobe found in the act of the legislature requiring jailers to execute bonds, and authorising suits thereon. The act simply provides that the bond may be put in suit by any person injured by the acts of the jailer. But if we advert to the doctrine ©f the common law, it will he found, that in estimating damages in actions for an escape, the jury are always governed by the injury which the plaintiff has.sustained. We are aware, that in cases of escape on final process, by a statute of England, reenacted in this country, the plaintiff is permitted, by action of debt, to recover the entire sum for which the prisoner was charged in execution; but the remedy given by that statute has been held to be merely cumulative, and has never been supposed to change the rule as to the extent of recovery in the common law action. The right of the plaintiff to recover the entire debt,
. ft. results, therefore, that as the extent of the dam-' ages sustained by the relators in the court beloiy, was not shown by them in evidence, the court ought to have given the instructions to the jury.
The judgment must consequently be reversed with c.osts, and the-cause remanded to the court below, and further proceedings there had, not inconsistent with this opinion.