Co. 7 S. & R. 278, so far as it holds a different doctrine, is disapproved in Virginia. Perkins &c. v. Giles, Gov. 9 Leigh 397.

In England the court of common pleas has recently pronounced that the true measure of damages is the value of the custody of the debtor at the moment of the escape. If the execution debtor had not the means of satisfying the judgment at the moment of the escape the plaintiff will have lost only the security of the debtor's body; and the damages may be small. If the execution debtor had the means of satisfying the judgment at the moment of the escape and has wasted those means since the escape it is plain that the plaintiff has lost the chance of obtaining satisfaction of his judgment, through the sheriff's neglect; and the jury would be justified in giving the full amount of the execution. If those means have not been wasted but the execution debtor still continues solvent, the value of the custody is still the amount of the debt and the plaintiff is entitled to recover substantial damages: though the plaintiff might issue a writ of fi. fa. he is not bound to avail himself of this privilege; and the jury are not in estimating the damages to take into consideration that the plaintiff might by such writ have realized a portion of his debt. Arden v. Goodacre, 11 Com. Bench (2 J. Scott) 376, 73 Eng. Com. Law Rep. The court in this case merely decides that in estimating the value of the custody of the debtor at the moment of the escape, there ought to be no deduction on account of anything which the plaintiff might have obtained by diligence after the escape. If he has done anything to aggravate the loss occasioned by the sheriff's neglect or has prevented the sheriff from retaking the debtor, the damages would be materially affected by such conduct.

7. Liability of sheriff in respect to persons brought to the jail to be confined, and yet who were not confined therein; in respect to prisoners in jail when sheriff goes out of office; and in respect to slaves confined in jail. How far jailor is liable to sheriff.

The question of custody is a little curious, when the debtor and the keeper of the jail are the same person. Under the Massachusetts statute of 1783, c. 43, a ca. sa. against a deputy sheriff was directed to the coroner, who, like a constable, can only carry the prisoner to the jail and leave him there with a copy of the precept. This the coroner did. But the debtor being himself the deputy jail-keeper, instead of being confined in the jail, continued to live in the jail house and pursued his

ordinary business as if not arrested or committed. It was held that there was an escape, and that it was committed by the sheriff, just as much as if he had himself made a prisoner of the jail-keeper and given him the keys of the jail; he should have had there some person besides the debtor to receive and confine that debtor. Colby v. Sampson, 5 Mass. 310.

In Virginia, in an early action for an escape, it appeared that on the day the defendant was sworn in office, his predecessor brought the keys of the prison into the court-house where the defendant was and laid them upon the table, saying there were two prisoners in jail, upon which the defendant took up the keys. One of the two remained in jail 61 days, during which time he was fed by the defendant's order. At the end of that time he escaped. As he was not a prisoner in execution, the plaintiff insisted that he might be delivered over by the old to the new sheriff without indenture, and that the latter was chargeable. But it was decided otherwise; the court holding that an assignment by indenture was necessary in all cases whether the prisoner was in execution or not. Field v. Cocke, Barradall's MS. Rep. 173.

Soon after this case, a new regulation was made by statute; act of 1736, 4 Hen. Stat. p. 487, c. 7, § 3; act of 1748, 5 Id. p. 522, c. 10, § 14, 15; 1 R. C. 1819, p. 282, c. 78, § 26. The Code of 1849, p. 258, c. 50, § 17, provides as follows:

An indenture between a jailor quitting office and his successor, or an entry upon record in the court of the county or corporation, setting forth the names of the several prisoners turned over, at the time of the former's quitting office, to his successor, with the causes of their commitment, shall be sufficient to discharge the former from all suits for any escape that shall happen afterwards.

What slaves may be received in jail in Virginia has been provided for by the acts of 1822, 3, p. 34, c. 30, § 11; 1823, 4, p. 38, c. 35, § 4; 1846, 7, p. 66, c. 74. Under the act of 1823, 4, was made the decision in Burley v. Griffith, 8 Leigh 442. The report of the revisors (p. 280, c. 50, $ 8,) was amended by the joint committee on revision. The present law will be found in the Code, p. 257, c. 50, § 8. It is the duty of the jailor, among other things, to furnish every prisoner with a bed and bedding cleanly and sufficient, and have his apartment warmed when it is proper. Code, p. 255, c. 50,

3. If there be neglect to make such provision for a slave committed to jail, and in consequence of the negligence his health be injured, his owner may maintain an action for damages against the sheriff, who is ex officio jailor; the action

will lie against him although the misconduct was not by him but by his turnkey or servant. Dabney v. Taliaferro, 4

Rand. 256.

As the servant is liable to his master for a breach of duty, by reason whereof the master sustains a loss, so if the jailor suffer a prisoner to escape, or be guilty of any other act or omission for which the sheriff is made responsible, the jailor is liable to him. Duncan v. Klinefeller, 5 Watts 144.

8. Action against a sheriff for neglect of duty under a fi. fa. or writ of possession.

The sheriff has a reasonable time to execute every writ. But that does not excuse him in refusing to execute a writ when he has the opportunity, is required to do it and nothing occurs to prevent him. Mason v. Paynter, 1 Adol. & El. N. S. 974, 41 Eng. Com. Law Rep. 865. An action will lie against him for not executing a writ of habere facias possessionem in proper time, S. C.; or for neglecting to levy on or sell property under a fi. fa., or for a false return thereon, or for any other breach of duty in respect to its service or return. Nor is the right of action confined to a party to the judgment. For a breach of duty in the service of an execution, the officer is answerable to others injuriously affected by his conduct. Rich &c. v. Bell, 16 Mass. 294; Whitaker v. Sumner, 7 Pick. 551, 9 Id. 308; Sexton v. Neevers, 20 Id. 451.

The plaintiff will recover the amount of the debt, interest and costs when he shews damage to that amount, Whitaker v. Sumner, 9 Pick. 308; but not otherwise, Rich &c. v. Bell, 16 Mass. 294. To entitle him to recover more than nominal damages it must appear that he has sustained damage. This appeared in Phillips &c. v. Bridge, 11 Mass. 242; but not in Bales v. Wingfield, 2 Nev. & M. 831, 4 Adol. & El. N. S. 580, note, 45 Eng. Com. Law Rep. 580, note. The action cannot be maintained at all unless such damage has accrued. The principle of Williams v. Mostyn, 4 M. & W. 145, cited ante, p. 580, is applied to such a case. Wylie v. Birch, 4 Adol. & El. N. S. 566, 45 Eng. Com. Law Rep. 566. Even where the plaintiff appears to have sustained loss, his own negligence may sometimes prevent his recovering more than nominal damages. Waterhouse v. Waite, 11 Mass. 207.

CHAPTER LXII.

ACTION FOR AN UNLAWFUL OR EXCESSIVE DISTRESS OR LEVY ; OR FOR REMAINING ON PREMISES OF TENANT OR DEBTOR AN UNREASONABLE TIME.

1. Whether action lies for making distress for more than is due. How the rule is settled in England.

According to the common law, if the lord distrain for rents or services he has no occasion to give notice to the tenant for what thing he distrains; for the tenant, by intendment, knows what things are in arrear for his lands. 1 Rol. Abr. 674. The authority for this is Year B., Pasch. 45, Edw. 3, fol. 9, A, pl. 13; where Fyncheden, C. J., in answer to the argument that the lord, on the taking of a distress, ought to give notice to the tenant of the cause of the taking, says it is not so, for the tenant is always held by commou intendment to know what things are in arrear from his land as rent and service &c. This is adopted by Chief Baron Gilbert, Gilbert on Distresses 48. 16 Adol. & El. N. S. 680.

It thus appearing that the common law imposes on the landlord distraining no duty of informing the tenant what is the arrear of rent for which he distrains, it is considered to follow that the simple fact of making a distress, accompanied by an untrue claim or pretence that more was due than really was due is not actionable. Tancred v. Leyland, 16 Adol. & El. N. S. 680, 71 Eng. Com. Law Rep. 680; 3 Eng. Law & Eq.

Notwithstanding the opinion of Lord Tenterden in Avenell v. Croker &c. 1 Mood. & Malk. 172, 22 Eng. Com. Law Rep. 281, and of Parke, B. in Wilkinson v. Terry, ↳ Moo. & Rob. 377, the court of queen's bench had decided that a distress for more than was due was unlawful in its inception and that an action would lie at common law for this, as a wrongful act; the court considered that there was a legal damage and cause of action, although the excessive sum distrained for, was relinquished by notice to the tenant, and although by reason of the value of the goods taken falling short of the actual rent due, no real damage was sustained. Taylor v. Henniker, 12 Adol. & El. 488, 40 Eng. Com. Law Rep. 105. But this case has been since reviewed in the exchequer chamber and declared not to have been well decided.

"On the argument," says Parke, B., "no authority was cited in favour of the decision; and those above referred to in Rolle's Abridgment and the year book were not brought before the court. Some nisi prius authorities which were cited were in favour of the defendant; that of Lord Tenterden in the case of Avenell v. Croker, Moo. & M. 172, in particular. And that of Lord Abinger in Crowder v. Self, 2 Moo. & Rob. 190, was not cited. We are not satisfied with that decision of the queen's bench, and think that it should be overruled." Tancred v. Leyland, 16 Adol. & El. N. S. 680, 71 Eng. Com. Law Rep. 680, 3 Eng. Law & Eq. 481.

Parke, B. agrees, that "it cannot be disputed that the untrue claim or pretence may give a cause of action as all untrue statements may, if all the circumstances should occur with respect to it which are necessary to make a false representation actionable; and amongst others if it had been followed by any special damage, as if, for instance, the tenant had been prevented thereby from obtaining sureties to join in the replevin bond, some friends being ready to join in a boud to secure the true amount who would not join in one to secure the amount claimed. Nor can it be disputed that if a larger quantity of the goods so taken than was sufficient to raise the amount of the rent in arrear and legal costs, had been subsequently sold, such excessive sale would have been illegal and actionable." But putting the construction the most favourable to the plaintiff, the allegation in the count as to the sale had no such import; nor was it alleged that an unreasonable quantity of goods were taken, so as to constitute an excessive distress.

There was a subsequent case before the exchequer chamber in which the count could only be distinguished from that which was held bad in Tancred v. Leyland, by the circumstance that it contained an averment that the distress for the rent was "maliciously" made. This was deemed an immaterial circumstance; the court saying that an act which does not amount to a legal injury, cannot be actionable because it is done with a bad intent. Newnham v. Stevenson &c. 3 Eng. Law & Eq. 512; Stevenson v. Newnham, 13 Com. Bench (4 J. Scott) 297, 76 Eng. Com. Law Rep. 297.

2. In Virginia action lies where property is distrained for rent not due, or attached for rent not accruing, or taken under attachment sued out without good cause.

It has been decided in Virginia that a distress where no rent