In case against a sheriff for an escape the measure of damages is the damages actually sustained by the plaintiff: the amount of the judgment in the action wherein the escape took place being only prima facie evidence, open to rebuttal by the sheriff.
DURFEE, C.J.
In an action on the case against a sheriff for permitting the escape of a party arrested on original writ or mesne process, the measure of damages is the damages actually sustained, and the amount of the judgment recovered in the action in which the escape is permitted is only prima facie evidence, open to rebuttal by counter evidence adduced by the sheriff. Patterson v. Westervelt, 11 Wend. 543; Brooks v. Hoyt, 6 Pick. 468; Eaton v. Ogier, 2 Me. 46; State Treasurer v. Weeks, 4 Vt. 215; Danforth v. Pratt, 9 Cush. 318; Arden v. Goodacre, 11 C.B. 371; Shuler v. Garrison, 5 W. Serg. 455; Smith v. Hart, 1 Brev. 146; Spafford v. Goodell, 3 McLean, 97; Blodgett v. The Town of Brattleboro, 30 Vt. 579; Hootman v. Shriner, 15 Ohio St. 43.
Exceptions sustained.