1. The right of action against the defendant, for taking insufficient bail, accrued upon the return of non est inventus upon the execution issued against the principal. Rice v. Hosmer, 12 Mass. 127. Mather v. Green, 17 Mass. 60. It is true, that by the Rev. Sts. c. 91, § 4, the bail bond is required to be returned by the officer to the clerk of the court, and filed with the writ. The omission to perform this duty would subject the officer to an action ; but it might be only for nominal damages. He might have taken a good and sufficient bail bond, and having returned upon his writ that he had done so, the creditor might properly waive all claim for damages for the neglect to return it with the writ; and he may do so, as we think, leaving in full force his right to institute an action on the case for taking insufficient bail, after a return of non est inventus. The plea of the statute of limitations cannot, therefore, avail the defendant.
2. The rule as to competency of evidence in reduction of damages seems also to be equally well settled. Although the amount of the judgment is prima facie evidence of the measure of damages, yet this may be controlled by evidence showing the entire inability of the debtor to pay, and the actual injury therefore to be less than the amount of the judgment against him. Weld v. Bartlett, 10 Mass. 473. Nye v. Smith, 11 Mass. 188. Rice v. Hosmer, 12 Mass. 127. Shackford v. Goodwin, 13 Mass. 187. In some of these cases, the principal had not withdrawn from the Commonwealth, and might have been arrested on the execution ; but in others, the facts were much like those in the present case. This is particularly true of the case of Rice v. Hosmer. The fact that the principal debtor was out of the Commonwealth, and could not be arrested on execution, may be important in its bearing upon the amount of damages sustained by the default of the sheriff; but it does not affect the general rule of damages, or the competency of *569evidence tending to show the entire inability of the debtor to satisfy the demand. In all actions on the case, the question is, what is the amount of damage sustained. Brooks v. Hoyt, 6 Pick. 469.
The statute (Rev. Sts. c. 97, § 71,) abolishing the action of debt for an escape, is strongly in affirmance of this rule of damages. Indeed, the only object of such enactment was, to allow, in all cases of this nature, the application of this principle, and not to permit the plaintiff, by changing the form of his action, to evade this rale of damages.
3. The ruling of the court, as to the competency of the evidence given by J. S. Hatch, as tending to show the poverty of Henry W. Hatch, was correct. The evidence was competent, but liable, of course, to the objection, to be taken to the jury, of its weakness and insufficiency to establish the fact attempted to be proved. These were considerations properly to be weighed by the jury, but should not have led to the rejection of the evidence by the court.
Exceptions overruled.