Camebeel, J.:
Plaintiff sued defendant 'for causing him to be arrested; *68and imprisoned for refusing to testify before him under a void complaint, which, as we held in ex parte Morton 10 Mich, R., 208, gave defendant no jurisdiction to make the inquiry. Plaintiff having been arrested and placed in the custody of the sheriff at the-jail, was not locked in the cell which was given him as a sleeping room, and was allowed to visit freely the sheriff’s apartments, being - only restrained from leaving the jail yard. The Court instructed the jury that if they believed ’this, plaintiff could only recover nominal damages, explaining this expression to mean damages “ sufficient to pay the plaintiff for his time while he was being arrested and taJcen to the jail? Proof was introduced of special damage, including the expense of obtaining a discharge on habeas corpus, which became immaterial under this charge.
The Court erred in confining the jury to damages for 'mere loss of time, in consequence of an arrest. In all cases 'of this nature the jury are entitled and required to find such general damages as they deem appropriate under the circumstances, for the ‘ arrest and detention, as well as any special damages which are lawfully proved to" their satisfaction. The Court can never confine a jury to either nominal or special damages if there has been a real personal injury; and every deprivation of liberty is so regarded. It is for the jury themselves to determine whether the circumstances should reduce the recovery to a minimum. There was also error in taking the imprisonment by( the sheriff away from the consideration of the jury. This was done on the ground that there was an. escape in law, and therefore no subsequent imprisonment under the precept. As under our statutes the creditor cannot pursue the sheriff or an imprisoned debtor for an escape so long as the latter remains within the county, the doctrines of civil imprisonment have become with us quite unimportant.— *692 G. L., §5552, §5555. But where a defendant is held, for a public offence, or grievance, not civil in its nature, even a voluntary escape permitted by a sheriff does not prevent the officer from retaking him, and it is his duty to make the recapture, for which purpose the writ remains in full force.— Clark v. Cleveland, 6 Hill R., 344. In this case, while great liberty was undoubtedly allowed to the prisoner, which may and should be considered ^by the jury, yet there was evidence showing an actual detention within certain bounds of the prison. The prisoner did not remain at large and out of custody. . An in-, dictment for an escape must always charge that the prisoner went at large from his custody. — 1 Russ. Cr., 423; 2 Hawk. P. C. ch., 19, §14; Archb. Cr. Pl., 550, 553. So long as a criminal escape has not occurred, the party is certainly in custody under the process; and if the officer is liable for over-indulgence, he is not liable for-anything more; and a person arrested and taken to jail must accept such confinement as the sheriff, without exceeding -such severity as is lawful, may impose. The indulgence of his jailor may mitigate, but it does not destroy his imprisonment.
The facts introduced on the trial below had a tendency to show that the plaintiff was active in designing and bringing about his own imprisonment. There was also fair ground for arguing to the jury that the imprisonment itself was very much, if not entirely, under his own. control. That it was little more than a farce of his own enacting, was forcibly urged before us. ' But it was for the jury after all to say how much the-plaintiff had been damaged in person, or sensibility, or pocket, as well as whether or not he was his own jailor-in a voluntary martyrdom. If this was so in fact, there* can be no substantial grievance, to complain of. What^ ever we , may think of the demerits of the cause, it must be left to the jury to give to the evidence such force* *70■as it deserves, and to measure the damages accordingly.
Judgment must be reversed with costs, and a new :trial granted.
The other Justices concurred.