— The defendant is sought to be charged— 1st. For permitting the escape of an individual, arrested on mesne process. 2nd. For neglecting to arrest him. The measure of damages, in either case, must be the extent of the injury sustained, by the failure of the defendant to discharge his official duty. [Tombeckbee Bank vs. Godbold, 3 Stewart’s Rep. 240; Clark vs. Smith, 9 Conn. Rep. 380 ; Brooks vs. Hoyt, 6 Pick. Rep. 468.] Hence, it was incumbent on the plaintiff, to shew what sum he was entitled to recover of Ball. It will not be denied, that the admissions of the latter would have been admissible against himself, to shew the amount of his liability ; but it has been said, that they cannot be received in an action against the sheriff, to charge him with the plaintiff’s loss, consequent upon his neglect; unless they were made subsequent to an arrest, and previous to the escape. Let us inquire, if this distinction rests upon reason and authority.
*395If the party, against whom process was placed in the hands of the sheriff, was arrested, the plaintiff might prosecute his suit against him, and recover a judgment, upon shewing that he admitted a liability; and he might tiren, in the action against the sheriff, introduce that judgment as evidence.
What principle of law would prevent the plaintiff from ceasing to prosecute his suit against the party escaping, and seek a recovery against the sheriff, for his breach of duty ? If he could do this, should not evidence, which would be admissible against the debtor, be also received against the sheriff? It may have been supposed, that the defendant in the original process, should have been examined, instead of proving his declarations by a third person. Now, it may be regarded as doubtful, upon authority, whether he could have been compelled to testify for the plaintiff. [2 Phillips on Ev. Cow. & H.’s ed. notes, 517—518. But, conceding that he might have been used as a witness against his consent, and it will not necessarily follow, that it was incompetent to prove his admissions by others. If an admission is made in writing, it is clear, that the party, wishing to avail himself of it, must produce the writing, or account for its absence. This requisition rests upon the ground, that written evidence is of a-higher grade, than that which is delivered verbally. But, if there be no writing, but only an objection, that the person who pronounced the words, should be produced, and the hearer excluded, it is quite obvious, that this goes not to the competency, as founded upon grade. Nor can it be regarded as merely hearsay evidence. The declarations of an agent -are admissible as those of the principal, though the agent himself might be called as a witness. [2 Phil. Ev. Cow. & H.’s ed. notes, 182—435.]
If the first count be regarded as charging a voluntary escape, Ball would be a competent witness for the defendant; for his interest would be adverse to the latter. In Waters v. Burnett, 14 Johns. Rep. 362, it is said that, if the escape was voluntary, the officer could not recover against the prisoner, who was, therefore, interested to procure a verdict in favor of the plaintiff, by which he would be discharged from all liability to the plaintiff on the original indebtedness. [See, also, *396Bridge v. McLane, 2 Mass. Rep. 620.] The defendant, then, being authorised to examine the party escaping, might, had he desired it, have had the benefit of his evidence, and explained his declarations, if susceptible of explanation. But the plaintiff could not have examined him, as his own witness, for the reason, as we have seen, that he was interested in his recovery against the defendant; and, if his admissions could not be related by those who heard them, the plaintiff must lose the benefit of them.
If the liability of Ball had been shown by writing, the paper would have been evidence .against the defendant, upon the ground, that it contained an admission. True, the writing •would be a higher grade of evidente; but the principle, which authorizes its admission, tvould tolerate the introduction of a ■verbal declaration.
In the second count of the declaration, the defendant is sought to be charged for a failure to execute process. If the process was never executed, the plaintiff could not have prosecuted his suit, against Ball, to judgment, and might probably be entirely remediless; unless the evidence excluded, had been permitted to go to the jury. The distinction taken by the Court, between declarations made before and after the service of the writ, we think, is not well founded in principle or authority.
Our conclusion is, that the judgment must be reversed, and the cause remanded.