By the Court,
Sutherland, J.This was an action of debt against the sheriff of Yates county, for the escape of one Randall from the limits, when committed (as is alleged) upon a justice’s execution. The plaintiff below recovered, and the sheriff appealed to the court of common pleas, where the plaintiff again recovered ; and from that court it is now brought here by writ of error.
*117Two errors are assigned: 1. That there was no venire issued or filed in this cause; 2. That an action of debt will not lie against a sheriff for an escape of a prisoner committed upon a justice’s execution.
I. As to the venire, the fact that there was no venire filed in the cause, is established by the return made by the court below to a certiorari issued in the cause. There is a regular award of a venire upon the record, and the question is, whether the omission to issue it, is ground for reversing the judgment.
In Livingston v. Rogers, (1 Caines, 583,) it was held that the want of an award of venire upon the record, was ground for arresting the judgment. In The People v. McKay, (18 Johns. R. 212,) the prisoner had been convicted of murder without a venire having been returned and filed; the paper purporting to be a venire not having been sealed. It was held to be error, and the judgment was arrested. It was conceded in that case, that since our statute for regulating trials of issues, and for returning able and sufficient jurors, (1 R. L. 328,) there seemed to be very little use in the venire. But still, as at common law, the sheriff could not summon a jury without a venire, and as upon a fair construction of our statute upon the subject, (1 R. L. 328 339, sect. 16,) it did not appear to be the intention of the legislature to supersede the use of it, the court held, that in a criminal case like that before them, affecting life, they were not authorized to dispense with if, and accordingly arrested the judgment. But if the venire is a mere matter of form, is not the omission to issue it in a civil case within the spirit and policy of the statute of jeofails, and cured by it Í
II. Will an action of debt lie in such a case ? It is contended that, at common law, the only remedy where there was an escape was by an action on the case, where the measure of damages is open to the investigation of the jury ; whereas in an action of debt, the whole judgment is to be recovered or nothing. (Thomas v. Weed, 14 Johns. R. 255. Van Slyck v. Hogeboom, 6 Johns. R. 270.) The action of debt against the sheriff for an escape, is given by the 19th section of the act concerning sheriffs, &c. (1 R. L. *118425. That section provides, “ that every person who shall be arrested by virtue of any writ of execution to be issued from any court of record against his or her body, &c. shall be safely kept in prison until such person shall satisfy such debt or. damages; and if any sheriff shall permit any such person so arrested or committed, to go out' of prison or be at large, he shall thereby become answerable to such plaintiff or party for the debt or damages, for which such person was arrested or committed, and the plaintiff or party may recover the same with costs, by action of debt against such sheriff.'3 The phraseology of the section is very explicit; it gives the action of debt, only whese the escape is from imprisonment on an execution issued from a court of record. This remedy is in the nature of a pénalty against the sheriff for negligence, as the action of debt given by the 13th section of the $25 act, against a constable for not levying an execution, (1 R. L. 395,) was held to be, in Thomas v. Weed, (14 Johns. R. 255,) and it was there- held that the remedy was not to be extended bejmnd the letter of the statute.
The act making it the duty of the sheriff to keep defendants committed upon justices’ executions, prescribes no penalty for a violation of such duty; it therefore leaves the party injured to his common law remedy by an action on the case, where he will recover what he has actually lost, and no more. In Jansen, late sheriff, v. Stoutenbergh and Teller, (9 Johns. Rep. 869,) it was held that an action of debt for an escape against a sheriff was cognizable in a justice’s court. It appears from the report of that case, that the escape was from a commitment upon a justice’s execution; but the point was riot raised by the counsel or adverted to- by thé court: The action, therefore, cannot be considered as sanctioned by it. A justice’s court is not a court of record.
I am therefore of opinion, that on this ground the judgment below ought to be reversed.