1866. MACRAE

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CLARKE.

absconded, or become insolvent; for if the Defendant were originally in bad circumstances, or he may be met with every day, and the Plaintiff has not in fact been injured by the negligence of the Defendant, the damages will be merely nominal. Mr. Starkie says briefly: "The Plaintiff must prove his debt and the damage he has sustained from the sheriff's negligence."" In order to arrive at the damages sustained by the escape it is evident that consideration should be given not only to the actual state of the prisoner at the time, but to his surrounding circumstances. Suppose when he was in custody a friend came and offered to pay the debt, and at that moment the debtor escaped, could it be said that that offer would not be an element in estimating the damages for the escape? In the cases decided under Lord Campbell's Act, 9 & 10 Vict. c. 93, it has been held that a reasonable probability of a pecuniary benefit from the continuance of the life of the deceased is sufficient to enable the representative to maintain an action: Dalton v. The South-Eastern Railway Company (a); Duckworth v. Johnson (b); Pym v. The Great Northern Railway Company (c).

Macnamara in support of the rule. The circumstances of this case show that the damages should have been merely nominal, for it was clearly proved that the debtor at the time of the escape was hopelessly insolvent. In estimating the damages the jury ought not to look beyond the debtor's actual means and resources at that time. It is not contended that the means should be only such as are instantly available, but they should be such only as are in his possession, or to which he has a present title. We cannot look at the position occupied by the debtor at a former time, or at that held by his relatives and friends at the time of

(a) 4 C. B., N. S. 296.

(c) 4 B. & S. 396.

(b) 4 H. & N. 653.

the escape. To do so would be to introduce vagueness and
uncertainty, and would perhaps be the means of working
great injustice to the Defendant. [Keating, J. Would
not your definition exclude those cases which have been
held good under Lord Campbell's Act?] Those cases are
not parallel with the present. It is evident that there must
be a limit to the matters taken into consideration-it could
not, for instance, be said that the probability of a sum of
money being left by will ought to form one of them. In
Arden v. Goodacre (a), there was property over which the
debtor had control. [Smith, J. A man may, nevertheless,
raise money on post obit bonds.] That is so; but still it
is too vague a matter for a jury to consider in the damages.
Sedgwick in his book on damages, p. 508, 2nd ed., after
stating that it is an important inquiry to ascertain whether
the recovery of the debt has been prejudiced by the acts of
the Defendant-in other words, whether under any circum-
stances it could be collected of the Defendant's property,
observes, p. 509, as follows: "In England, it would seem,
though it is by no means clear, that the Plaintiff must
show affirmatively that he could have collected his debt
but for the negligence of the Defendant; while in this
country, it appears to be settled that the Plaintiff, after
proving his debt against the prisoner, the custody and
escape, is entitled to recover as his damages the amount of
his debt, unless the officer can show that the Defendant
was insolvent, or in any other way prove that the Plaintiff
has sustained no actual loss." Even assuming the father
promised to pay the debt, that would be a mere promise, not
binding in law, and not to be estimated in the damages.
[Smith, J. Suppose the father expressed his readiness to
pay on the prisoner's being removed to the gaol.] That,
again, is a mere statement, nothing being certain. The
question, therefore, which ought to be left to the jury must

(a) 11 C. B. 371.

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MACRAE

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1866.

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be one limited to the actual state of things at the time of the escape, for it would be extremely inconvenient for a jury in ascertaining the damage sustained to travel into remote and contingent probabilities.

KEATING, J. I am of opinion that this rule should be discharged. The rule was obtained on the ground that the Judge misdirected the jury, in telling them to consider the value of the chances that if the imprisonment had been continued the remaining debt, or any part of it, would by that imprisonment have been extorted. Now this was an action for the escape of an execution debtor, and it has been suggested that the Judge ought to have told the jury that they should consider only the means and resources of the execution debtor himself at the time of the escape. I am of opinion, however, that that would have been a misdirection, as in an action of this kind it would not be the true measure of damages. The remedy against the body of a debtor is a peculiar remedy, and it can only be valuable to the creditor in so far as it acts as a pressure for the recovery of the debt. That being so, it is argued that the measure of damages in the event of escape is, what was the real value of the debtor's custody at the time of escape? And that is the true rule. But the question arises, how that value is to be estimated? The answer to this must to be to observe the effect of pressure upon the debtor by keeping him in custody. It is difficult, no doubt, to draw the line; but in deciding that the rule should be discharged, I look at this case, and this case alone, and although we find that the debtor was insolvent, and that he had no available resources-that is, that he could promise nothing in order to obtain his release; yet there were other facts which it was fit for the jury to act upon. There was the offer by his attorney of 6s. in the pound; and although some explanation was offered as to the circumstances which induced that offer to be made, the jury may or may not

have assented to that explanation. Another fact was, that the debtor was the son of a man of large property, and of an advanced age. It was clearly within the above rule for the jury to connect the offer of the 6s. in the pound with the position of the father, and to consider how far that position was a solution of the offer. But whether that amount would have been extorted or not, the question is, what, under all the circumstances, was the value of the custody? I think, therefore, there was no misdirection, and no ground for saying that the damages should be nominal; and if they ought not to be nominal, I think they are reasonable.

SMITH, J. I am of the same opinion. The true rule being stated in Arden v. Goodacre (a), that the measure of damages is the value of the custody of the debtor at the time of escape; the question arises how that value is to be estimated? It is said that the custody is only valuable so far as it affords means of obtaining that which is then available for payment of the debt. I cannot help thinking that this view is too narrow. The object of the creditor is to obtain his money by the duress of the debtor; and in estimating the value of that custody, I think you are entitled to take into consideration the probabilities, having regard to all the surrounding circumstances, of the debt being ultimately paid.

The decision we give in this case can be no guide to the measure of damages in any other class of cases, as the action is one of a peculiar kind. Formerly the sheriff was liable for the whole debt, and it was said that this was a great hardship, for in many cases the debt itself might be in a great degree hopeless. Now, however, without laying down any precise rule of how the damages should be assessed, the law declares that the measure of them shall

(a) 11 C. B. 371.

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be the value of the custody at the time of escape; and I think my Brother Byles was right in telling the jury, in considering that value, to estimate the value of the chances of payment if the imprisonment had been continued. There was an offer to pay 6s. in the pound of the execution debt, and that offer might have been repeated. The father was 100 years old, and if his wealth consisted in land, it is difficult to say that the jury should not estimate the chances of the son getting that land; or if it was personalty, the chance of the son's obtaining a share under the Statute of Distributions. In the whole it appears evident that my Brother Byles could not as a matter of law tell the jury that the damages should be nominal.

BYLES, J. I have nothing to add to what has been said, except as to the amount of damages; I thought them moderate and reasonable.

Rule discharged.