5 Blackf. 381 | Ind. | 1840
The state on the relation of Tillotson sued Miller, a constable, and his sureties, on his official bond. The breaches of the condition of the bond alleged in the declaration are — that Miller having two writs of ca. sa. in favour of Tillotson against one Young, arrested the execution-debtor, and permitted him to escape; and that having two other writs of the same kind between the same parties, and having had an opportunity to arrest the execution-debtor, he failed to do so. Plea, general performance of the condition of the bond, and issue thereon. The parties agreed that under that issue, all evidence should be received that would have been admissible under any state of special pleading proper in the cause. Judgment by the Court, without a jury by consent, in favour of the plaintiff below for costs only. The plaintiff prosecutes this writ of error-.
The facts are the following: Young and one Reynolds executed to Tillotson their two joint and several notes for 70 dollars each; Reynolds was the surety of Young. Tillotson obtained a several judgment, on each of the notes, against Young before a justice of the peace. On these judgments the executions mentioned in the declaration issued, on which Miller, the constable, arrested Young and suffered him to escape. The executions were sued out at the instance of
The plaintiff in error contends that the constable and his sureties had no right to avail themselves, in defence of the action, or in mitigation of damages, of the payment by Reynolds of the debt for which Young was arrested, and that therefore the judgment of the Circuit Court should have been for the full amount of that debt. In this we think he‘ is mistaken. Had the action been in case against the constable for the escape, payment of the debt by the execution-debtor would, at least, have mitigated the damages. Russell v. Turner, 7 Johns. R. 189. Payment by a surety of the debtor must have the same effect; and the principle is equally applicable to this action, the real object of which is the recovery of damages. ■ We do not mean to say, however, that had Reynolds paid the debt for which he was Young’s surety before the commencement of the action, it would not have been a good bar. There can be no doubt, admitting the payment to have been made since that time, that it ought to reduce the plaintiff’s claim to nominal damages. If• his right to nominal damages be granted, the. omission to assess such damages, when substantial justice has been done, is no cause for a new trial. Bac. Abr. tit. Trial, L.—1 Burr. 11. 2 id. 664.—Brantingham v. Fay, 1 Johns. Cas. 255.
But the plaintiff in error also contends that this action, though nominally for the use of Tillotson, is really prosecuted for the benefit of Reynolds, and that - the latter has a right to maintain it against the constable and his sureties, in consequence of the escape of Young, for the purpose of recovering the money which he paid as Young’s surety. This position is entirely untenable. Had Reynolds purchased the judg
The judgment is affirmed at the costs of the relator.