majority">Treat, C. J.

The declaration described a judgment for $140 damages, and $191.66 costs. On the trial, the plaintiff offered in evidence the record of a judgment for $140 damages, and costs of suit to be taxed; also the fee-book in'which the costs were taxed at $191.66. At the foot of the fee-bill was this entry; “ Sheriff Cook return ex. 12-j-; ” but the amount was not carried to the right-hand side of the page, as was the case with the other items of the bill. The court rejected the evidence, because of a variance between it and the declaration. There was no variance in point of fact. The entry in question formed no part of the fee-bill. It was but a memorandum of the clerk, to be extended and included in the fee-bill when the execution should be returned by the sheriff. But if the item could be considered as embraced in the taxation of costs, the evidence was improperly excluded. It is laid down in Leidig v. Rawson, 1 Scamm. 272, and Hull v. Blaisdell, Id. 332, that where an instrument of wilting, or a record is not the foundation of the action, a variance is not material, unless the discrepancy is so great as to afford a strong probability that it cannot be the instrument or record described. This rule is decisive of the question. The escape was the foundation of the action, the judgment being but inducement. The record produced was evidently the one described in the declaration, and the defendant could not have been surprised by its admission.

It is insisted that an action of debt will not lie against a sheriff, for an escape on a writ of capias ad satisfaciendum. At common law the only remedy was by action on the case. But the statutes of Westminster 2, ch. 11, 13 Ed. 1, and 1 Rich. 2, ch. 12, gave an additional remedy by action of debt. And those statutes being in aid of the common law, are in full force in this State. ' Our statute adopts not only the common law of England, but also all statutes in aid thereof, passed prior to 4 James 1, (except the 2d sec. of the 6th ch. 43 Eliz., the 8th ch. 13 Eliz., and 9th ch. 37 Henry 8,) which are of a general nature and not local to that kingdom. Rev. St. ch. 62, § 1. Under a similar provision in Indiana, the British statutes giving the remedy by action of debt for an escape, were held to be in force in that State. Gwinn v. Hubbard, 3 Blackf. 14. Similar decisions were made in Shewel v. Fell, 3 Yeates, 17, and Steere v. Field, 2 Mason, 486. A party may elect to bring debt or case. In the action of debt, the plaintiff is entitled to recover the amount of his judgment and costs. In the action on the case, the measure of damages is the actual loss which the plaintiff has sustained. Duncan v. Klinefelter, 5 Watts, 141; Shuler v. Garrison, 5 Watts & Serg. 455.

The judgment is reversed and the cause remanded.

Judgment reversed.

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