¶1The cause of action was not contested, and the only question was, what was the measure of damages. Since the action of debt for an escape has been abolished, the rule established is, that “ the creditor may have an action on the case against the officer, to recover such damages as he shall have suffered by the escape.” Rev. Sts. c. 97, § 72. It is the ordinary case, then, where the plaintiff, having established his cause of action, proceeds to satisfy the jury that he has sustained damage. The rule of damages is much considered in a late English case, under a statute similar to our own. Arden v. Goodacre, 11 C. B. 371, 883.
¶2The court are of opinion, that the judge rightly declined to give the instruction prayed for. The execution was undoubtedly competent evidence, and if no other evidence had been offered, the jury might have been satisfied with it; but this was a question of fact, and not of law, and therefore the judge could give no authoritative direction in regard to its force and effect. The jury were to assess the damages upon the whole evidence.
¶3Exceptions overruled.
¶4The plaintiff, having recovered twenty dollars only, is within the statute which gives a quarter of that amount for costs. Rev. Sts. c. 121, § 3. The ground on which that statute allowed only one quarter costs was, that it appeared by the event that a case was brought in the court of common pleas, which might have been brought before a justice of the peace. When the jurisdiction of a part of these actions was transferred to the supreme court by St. 1840, c. 87, § 1, the incidents, including costs, were transferred and passed with them.