The rule of damages upon an escape would have allowed the plaintiff no more than his actual loss. In this case, of a non compliance with the rule to bring in the body, if the Sheriff is fixed, and a trial is lost, the general rule is, that he must pay the debt. But here the party is insolvent and has been so ever since the proceedings against him were commenced. Now the principle is no where laid down explicitly, that we may apportion the plaintiff’s debt; but in The King v. Adderly, (Doug. 464,) Buffer, Justice, intimated, that when the Sheriff should come to purge the contempt for not returning a writ, it would be competent for the Court to moderate the punishment, and not impose a fine to the amount of the whole debt; though in that case the general rule is the same ; and the Sheriff is in general made to pay the whole debt, (id.) The reason of such a course, in the present case, is too strong to be resisted, though the plaintiff may have lost a trial. Here is a strong, undisputed case of insolvency from the beginning. The plaintiff has lost nothing.
*506But as he may have been surprised by the affidavits or the part of the defendant, owing to the course which the proceedings have taken, we give him to the next term to disprove the insolvency, if in his power.
The Court, thereupon, directed a 'rule entered, of which' the following is the substance.
Rule.—It appearing to this Court by several affidavits produced by the defendant, that John Cutler, at the time the suit of David Long was commenced against him was insolvent, and had not any property liable to execution, and has continued insolvent and without property ever since, ordered, that the motion for leave to take out execution for the uncollected balance due on the judgment of Long against Cutler, (not including the costs,) be postponed until the next term, to the end that the plaintiff in said judgment may disprove the said allegation of insolvency; and if he shall fail so to do, then that the execution be perpetually stayed as to the plaintiff’s debt; and it is further ordered that execution may issue on the judgment against the defendant for a sum equal to the costs taxed in this suit, the costs taxed in the judgment of Long against Cutler, and the costs of this motion.