State ex rel. Goddard v. Baden , 11 Md. 317 ( 1857 )

Ln Grand, C. J.,

delivered the opinion of this court.

This case comes before us on a case stated. It is an action of debt on the official bond of Baden, formerly sheriff of Prince George’s county. The facts may be thus briefly stated: In the year 1846, Charles Goddard, the cestui que use, sued out a capias ad satisfaciendum against Osborn Sprigg, against whom a judgment had been previously recovered; that on the return of the writ, Sprigg was committed to the custody of Baden, the sheriff, who, instead of lodging him in the jail of the county, confined him in the private room of the sheriff; that on the next day Sprigg applied for the benefit of the insolvent laws of the State, and obtained his personal discharge. This action is brought, in the name of the State, against the sheriff and his sureties, for a voluntary escape. On this statement three questions are propounded to the court. The language of the agreement is as follows: “That if the court should be of opinion, upon the foregoing statement, that the omission and failure of the said Baden, sheriff as aforesaid, to confine lile said Sprigg in the county jai!, after he was finally committed under the ca. sa. on the prayer of the said cestui que use, is such a breach of hia official duty as to render his bond liable therefor, that then a judgment shall be entered by the court in favor of the plaintiff, for the penalty of the bond sued on, to be released on payment of the judgment and costs mentioned in the plaintiff’s declaration, with interest from the day therein stated in that behalf, unless the court shall be of opinion that in this form of action, and on the above breach of duty, it is competent for the defendants to show, in mitigation of damages, the inability of the said Sprigg to pay all his debts due and owing at the time of his said commitment; or unless the court shall bo of opinion that the fact of the said cestui que use filing his said judgment before the auditor in insolvency is a waiver, or merger, or operates as an extinguishment of the right of the said cestui que use to resort to the official bond of said defendant, for said breach of duty; and if the court should entertain either one, or both, of the last opinions, then a judgment is to be entered in favor of the defendants, for their costs of suit,” dec.

In the view we have of this caso, we deem it only necessary to decide one of the questions, although we have carefully examined the authorities bearing on the others.

We are of opinion that it was competent, on the trial of the cause, to give in evidence, in mitigation of damages, the inability of Sprigg to pay all his debts at the time of his commitment. This, after full argument by counsel, and elaborate investigation by the court, was settled clearly in the case of The State, use of Creecy, vs. Lawson, et al., 2 Gill, 63. In that case, on page 71, the learned judge, who delivered the opinion of the court, after stating the question, proceeds to show' what was the common law applicable to such a case as this, according to which, he holds, “it was competent for the defendant to offer such evidence for such purposehe then adverts to the Statutes qfldih Edward, 1 ch. 11, and 1 Richard, 2, ch. 12, which gave an action of debt against a jailor, or sheriff, for an escape, and then goes on to show that the remedy employed in that case (which was the same as the one ■in this) is not the one authorized by either of those statutes, but an action of debt on a bond, with a collateral condition, for the faithful discharge of official duties as sheriff,- remarking, that although “the bond, it is true, is a statutory bond, but the remedy on the bond is the common. law remedy of action of debt on a bond with a penalty.”

, That case, on the question to which it refers, we regard as conclusive of this one, and, therefore, affirm the judgment.

Judgment affirmed.