This is an action on the case, brought against the sheriff for the escape of a prisoner, in custody on mesne process, and the question now before the court is, whether • it was competent for the sheriff to show that the plaintiff *192had. after he knew of the escape, relinquished to the. . , . _ ‘ , prisoner real security for the debt, which he held m the state of Vermont, with a view to recover his demand from the sheriff.
The true question in cases of this kind is, what has the plaintiff lost in consequence of the escape? (1 Johns, Rep. 223. 2 Johns. Rep. 454.) The jury are not confined to the exact damages in the final judgment, or to the amount of the plaintiff’s demand, but have a power and discretion to assess such damages as they shall suppose the plaintiff has' sustained, under all circumstances. (2 Wils. 295.) This is a doctrine well settled,, both in our own and in the English courts ; and, according to which, I see no objection to the competency of the evidence offered in this case. The value and extent of this security was a proper subject for the consideration of the jury, and could the plaintiff have shown it to be worth little or nothing, it would not have-mitigated the damages. As the testimony, however, appeared before the jury, it was sufficient to pay the plaintiff’s demand. It is admitted by the plaintiff’s counsel, and, indeed, could not be denied, that the insolvency of the prisoner, or payment of the démand by him, could be given in evidence in mitigation of damages. On what principle could this be done ? None other, .certainly, than to show how far the plaintiff had been, or was likely to be damnified. If the prisoner had deposited with the plaintiff a sum of money to satisfy his demand, when ascertained by judgment, and the plaintiff, on discovering that an escape had been made, had surrendered up the money, could it be doubted that the sheriff might avail himself of it in mitigation of damages ? Or, suppose the suit upon a bond which was secured by mortgage on real property, and the creditor, on discovering the escape, should discharge the mortgage, would not this circum- . stance be admissible in mitigation of damages ? Alt ; these cases depend on the same principle, and necessarily *193result from, the nature of the action, which is given to the _ . . „ , „ . , . ’ , 6 , . . plaintiff by way of indemnity, for the actual injury which he sustains by reason of the escape; and the plaintiff ought not to be permitted to avail himself of his own acts, or misconduct, to enhance the damages. The ■action is founded in good policy, as being calculated to make sheriffs vigilant in the execution of their duty. But it would be the extreme of injustice, to permit the creditor to relinquish a security held from the debtor, for the purpose of charging the sheriff. If A. Turner had actually paid the money to the plaintiff, with equal propriety might he refund it, and resort to the sheriff. This, according to, my view of the case, would be as illegal as it would be unj'ust. I know of no principle of law, to warrant such a position. It would be permitting a man to avail himself of his own misconduct, to the prejudice of another. The situation of the sheriff is analogous to that of -a suretyj and the law will not tolerate, or endure, any connivance between the creditor and principal debtor, to the prejudice of the surety. Had the plaintiff not relinquished the real security which he had in his hands, for the debt, but still held it, I am not prepared to say it would have been a complete defence for the sheriff. But, I am inclined to think, the court of chancery would have compelled the plaintiff to assign that security to the defendant, for his indemnity. The plaintiff having put the security out of his hands, no such relief can be obtained. And the only mode in which the defendant can avail himself of the plaintiff’s misconduct in this respect, is in mitigation of damages.
The motion for a new trial must, accordingly, be denied.
Spencer, J. not having heard the argument in the cause, gave no opinion.
Rule refused.