The opinion of the Court was drawn up by
Shepley J.This is an action on the case against the former sheriff of this county, to recover damages for the neglect of official duty by a deputy, to return an execution and a bond taken on the liberation of one of the debtors, who had been arrested on that execution. The bond had been approved by two justices of the peace as required by law. The measure of damages in such cases is the injury actually sustained. Testimony tending to prove, that the plaintiff could not have suffered essential injury from that neglect of duty, was legally admitted. The cases relied upon by the counsel for the plaintiff are not analogous. In the case of Simmons v. Bradford, 15 Mass. R. 82, testimony offered to prove, that the deputy did not take a bail bond, was rejected, because it would contradict his return, stating that he had taken, one. The proof in this case, that the bond Was of no value, would not contradict the return of the deputy. He was not to judge of its sufficiency. That duty the law had confided to others; and the officer was not chargeable with their neglect or misconduct. The case of Donelly v. Dunn, 2 B. & P. 45, appears to have been decided on the ground, that the bankrupt only, and not his bail, could plead his certificate of discharge. That case differs from the present in principle. Its *185authority has also been doubted. Olcott v. Lilly, 4 Johns. R. 407. A portion of the argument, if addressed to a jury to persuade them, that the plaintiff had suffered more than nominal damages, might be worthy of much consideration; but it was their appropriate duty to determine the amount of damages, and the accuracy of the conclusion is not presented by this report for the consideration of the Court.
Judgment on the verdict.