This is an action on the case against the sheriff of the county, for the escape of Porter K. Etheridge, under R. S., c. 80 § 31.
It appears that Etheridge^ the debtor, was committed May 20, 1878, to jail by virtue of an execution against-him in favor of the plaintiff, and on June 12th, following, was permitted to go at lai’ge, on giving a bond signed by two sufficient sureties and approved by a justice chosen by the debtor and one chosen by the jailer, who without especial authority assumed to act for the creditor.
The bond was not approved in writing. The justices were not selected in accordance with R. S., c. 113, § § 24, 42. The creditor had no part in the selection of a justice. The bond was not a statute bond, though it may have been good at common law. Guilford v. Delaney, 57 Maine, 589.
The creditor had a right to require- a statute bond. The jailer could not legally release the debtor without one. Here is an escape.
The plaintiff’s attorney upon being informed of the debtor’s discharge, sent for the bond, which was forwarded him. Had a *579suit been brought on the bond it would have been a waiver of all objections to the taking’ of it, but no suit has been brought. Kimball v. Preble et al. 5 Maine, 353. Its return to the jailer would have been of no avail to him, as after a voluntary escape he -would not have been justified in retaking the prisoner. Atkinson v. Jameson, 5 D. & E. 25. The mere retention of the bond under the circumstances is not equivalent to its written approval by the plaintiff or his attorney, or its approval by two justices selected according to the requirements of the statute.
The debtor having given the bond, notified the creditor to hear' his disclosure. The attorney appeared but declined to choose a justice, when one was chosen by the sheriff. Then protesting" against their jurisdiction he proceeded to examine the debtor and ended by protesting against the administration of the poor debtor’s oath to him or issuing a certificate. Here, then, has been no waiver of the escape. That was a past fact. When a bond has been forfeited, a creditor’s participation in the examination of the debtor after the expiration of the six months, does not constitute a waiver of the forfeiture. Guilford v. Delaney, 57 Maine, 589. So, where an action commenced before a magistrate has' been continued without legal authority, no magistrate being-present to continue it, an appearance at the time and place named, under protest, for the purpose of insisting that further proceedings would be illegal, cannot be regarded as a waiver of errors. Martin v. Fales, 18 Maine, 23. The action of the plaintiff’s attorney was merely a prudent precaution against possible contingencies. Briggs v. Davis, 34 Maine, 158. Persistent protestation can hardly be deemed an approval of a bond wanting in the requirements of the statute.
The plaintiff’ is only, entitled to the damages actually sustained., Brooks v. Hoyt, 6 Pick. 468; West v. Rice, 9 Met. 569; Chase v. Keyes, 2 Gray, 215. The true measure of damages is the-value of the custody of the debtor at the time of the escape. Doosey v. Orser, 4 Bosw. 391.
That value is almost infinitesimally minute. The evidence-satisfies us alike of the existing insolvency and utter poverty of the *580debtor and of their probable continuance. The plaintiff is entitled to nominal damages.
Judgment for plaintiff for one dollar.
Walton, Barrows, Virgin, Peters, Libbey and Symonjds, • JJ., concurred.