
    Joseph Bartlett versus Nathaniel Willis, Jun., and Others.
    The provision of the statute that the sureties in a bond, given for liberty of the yard by a prisoner for debt, shall be approved by two justices of the peace is intended merely for the benefit of the debtor, to prevent his oppression by the creditor. If, therefore, the creditor agrees to take the bond without such approbation, the intent of the statute is fulfilled; and the defendants, in an action on the bond, cannot avail themselves of the want of such formality.
    If a prisoner for debt, having given such a bond, be found in the night time voluntarily without the prison, and in the yard appurtenant to the jail, it is an escape within the condition of the bond. In an action on such bond, the Court will enter judgment for the penalty of the bond only, without interest ,
    This was an action of debt on bond pending in the county of Cumberland. At the last May term, at Portland, the defendants pleaded, first, the general issue non est factum, which was joined. And, secondly, they prayed oyer of the bond declared on, and of the condition, and had it.
    *The bond was in the penal sum of 3976 dollars, 60 [ *87 ] cents, and bears date the 13th day of December, 1806. The condition recites that the defendant Willis was imprisoned in the prison at Portland, by virtue of an execution issued against him in favor of the plaintiff, for the sum of 1500 dollars, damage, and 487 dollars, 95 cents, costs of suit, and goes on, “Now, if the said Willis shall from henceforth continue a true prisoner in the custody of the jailer, and within the limits of the said prison, until he shall be therefrom lawfully discharged, and without committing any manner of escape, then said obligation to be void, otherwise to remain in full force.”
    
    The defendants then plead that Willis, the defendant, did, from the execution and delivery of the said bond, continue a true prisoner in the custody of the jailer, and within the limits of the said prison, until he was therefrom lawfully discharged on the 23d day of March last past, without committing any manner of escape; and this they are ready to verify; wherefore they pray judgment, &c.
    The plaintiff replies (protesting that the said Willis was not lawfully discharged, &c.), that after the execution and delivery of the said writing obligatory, the said Willis, at said Portland, on the 20th day of January, 1807, in the night time of said day, passed out of the custody of the jailer, without the limits of the said prison, without being therefrom lawfully discharged, and committed an escape. Upon which issue is joined.
    The two issues aforesaid were tried before the chief justice, at the sittings after the last May term, at Portland, when the jury returned a verdict for the plaintiff upon both issues.
    The defendants moved for a new trial for a misdirection of the judge, referring to a report of the trial to be made by the said judge ; and the cause was continued nisi, tc be argued before the whole Court at this term.
    The report now made by the chief justice states that the plaintiff to maintain the first issue, produced the bond, and two of the subscribing witnesses, who testified to the signing, sealing, and delivery of the bond; but he did not produce any evidence [ * 88 ] that the sureties in the bond were approved * by two justices of the peace quorum unus. The defendants, for that cause, objected to the reading of the bond in evidence of the jury. The chief justice overruled the objection, observing that it was new, and that he would reserve the point, if the defendants should move for a new trial.
    To maintain the second issue, the plaintiff gave in evidence that Willis, the debtor, after the execution of the bond, and before his discharge, had in the night time gone to a certain pump for water; and it was agreed by the parties .that this pump was in ground owned by the county of Cumberland, but was not within the jail, nor within any of the houses or apartments belonging to the jail, nor within the picket fence around the jail, but was within the boundaries of the yard appertaining to the jail as fixed and determined by the Court of General Sessions of the Peace for the said county; that there was another pump within the said picket fence, and that both of the pumps were in wells sunk by the county, for the use of the jail. And the weight of evidence was, that when Willis went to the pump first described, in the night time, the pump within the picket fence was frozen.
    The defendants insisted that on these facts there was no escape, and that the second issue ought to be found for them.
    
      The chief justice directed the jury that if they were satisfied that Willis, the debtor, after the execution of the bond, and before he was discharged, did, in fact, in the night time, go to the other pump first described, they ought to find the issue for the plaintiff, otherwise that they ought to find it for the defendants; at the same time observing that he should reserve the legality of this direction for the consideration of the whole Court, if the defendants requested it.
    After the verdict the defendants moved for a new trial on both the points which the chief justice had proposed to reserve at their request.
    This motion was now argued by the solicitor-general (Davis) and Dexter, for the plaintiff, and the attorney-general (Bidwell) and Story, for the defendants.
    
      The attorney-general, not expecting that the argument would come on at so early a day, and having depended on his brother [ * 89 j Story (who had not then come into Court to * open the cause, observed that he was not prepared with authorities, but would briefly open the points relied on by the defendants, as .entitling them to a new trial, and he hoped the Court would permit Story to adduce any arguments or authorities he might be possessed of, should he come in before the argument was closed.
    The first point is, that the bond is void, because not conformable to the statute  on which alone it must be founded, and which requires that the sureties be approved of by two justices of the peace. That formality has not been observed in the execution of this bond ; and as the remedy founded upon this express provision of law is a rigorous one, enforcing a penalty in double the amount of the debt, not liable, as in other cases, to be chancered down to the sum found by the Court to be equitably due, the defendants have a legal and moral right to take advantage of the want of approbation by two magistrates, one of the requisite formalities, although it was originally introduced for the benefit of the prisoner, and to prevent him from unreasonable oppression. The remedy given by the statute is expressly confined to “ such bond,” that is, a bond executed in such manner and form as is prescribed in the act. If not attended with those requisites, it is not such a bond.
    
      Parsons, C. J. May not the bond, without that formality, be good at common law, and the penalty consequently liable to be chancered down  ?
    
      Bidwell.
    
    If it is good at common law, undoubtedly the penalty is subject to the same rule of chancery, as in other common law bonds. But this bond is provided and authorized, not by the com mon law, but by statute, and can therefore be supported only as a statutory instrument.
    
      Parsons, C. J. Can you take advantage of that objection under the general issue ? to be available must it not have been pleaded?
    
      Bidwell.
    
    I cannot be answerable for the pleadings in this case , but if the defendants have a legal objection to the validity of the bond, I trust the Court will give them an opportunity * to avail themselves of it, by pleading it, if necessary, [ * 90 ] on a new trial.
    The second point in the cause, and that which I have supposed was the principal one, is, that it does not appear, from the facts stated in the judge’s report, that the condition of the bond has been broken. The breach relied on is, that the prisoner, having a chamber and lodging in the jail-house, went out of the door of that house, in the night time, to a pump standing in the county land appurtenant to the jail, without the picket fence, but within the boundaries of the jail-yard, as established by the Court of Sessions. This, we contend, was not a violation of the bond, which was conditioned that, from the time of its execution, until he should be lawfully discharged, he should continue a true prisoner in the custody of the jailer, and within the limits of the prison, without committing any manner of escape. These three members of the condition, I apprehend, mean the same thing. To continue a true prisoner in the custody of the jailer, to remain within the limits of the prison, and to commit no escape, are, certainly, in common parlance, and, I believe, in technical language, equipollent expressions.
    By “ the limits of the prison" must be intended either, 1st, the walls of the jail itself, which actually confines the prisoner by locks and bolts, and other means of physical restraint; or, 2dly, the county land appurtenant to the jail, and appropriated to its use ; or, 3dly, the boundaries of the yard, as fixed and determined by the Sessions. The first cannot be the sense in which the words are here used, as that construction renders the provision for the liberty of the yard altogether nugatory; for, whatever may be considered the limits of the prison, the prisoner is not to pass them, either by day or night, at any time from the date of the bond to the time of his discharge. In either of the two other senses of the terms, the prisoner in this case did not go beyond the limits of the prison ; the pump, to which he went, being not only within the boundaries of the yard, but also in the land of the county appurtenant to the jail.
    [ * 91 ] * The limits of the prison are the prison, as the rules of the prison are under the English law; and no prisoner commits an escape by going or being any where within the prison.
    By our statute, the Court of Sessions are authorized to fix and determine the boundaries of the jail-yard, which thereby become the limits of the prison, or, in other words, the prison itself. At common law, indeed, and in respect to prisoners not entitling themselves to the benefit of this statute, by giving the bond required by it, it may be an escape to break out of the walls of the jail, without the consent of the jailer, or the command of law expressed by legal process. But our statute, as to those who come within its operation, has extended the prison to the boundaries of the yard. The common law principle then applies, that by going wherever the prisoner pleases, within the prison, no escape is committed.
    This conclusion seems not to be denied as to the day time; but a distinction is attempted to be taken between the day and the night. It is inferred from these words in the statute, “ that any person imprisoned for debt, either upon mesne process, or execution, shall be permitted and allowed to have a chamber and lodging in any of the houses or apartments belonging to such prisons, and liberty of the yard within the same in the day time, but not to pass without the limits of the prison, upon reasonable payment to be made for chamber room, to be set and established once in every year, by the Court of Sessions, and not to exceed two shillings a week.” Here, .it is alleged, the prisoner is allowed the liberty of the yard in the day time, but is limited to a chamber and lodging in the night.
    I submit to the Court a different construction. There are no restrictive words, limiting him to his chamber in the night, nor would there be any good reason for such limitation; for it is evident that the house, in which he is to have a chamber, may be, as in this case it is, uninclosed by any wall, and open to a free passage out of the prison; so that there is no actual restraint of the prisoner in his chamber, and therefore no reason for requiring him to remain within the doors of an open house, rather than go out of it. By going out of it, * as the prisoner in the present case did, [ * 92 ] he is no more out of the control or custody of the jailer, than when retired to his chamber. Such a restriction would be unnecessary, arbitrary, and without any useful object; and the law ought not to be so construed as to require that which is useless and vain.
    It is not, however, required by the letter, any more than by the spirit of the act. The words may all be satisfied, and have a full operation, in a different sense. The first clause permits and allows the prisoner, as a matter of right, to have, at a very moderate rent, a chamber and lodging in any of the houses or apartments belonging to the prison ; that is, the use of it for a lodging chamber. As lodging is the occupation of it by night, and might without further explanation, perhaps, imply that the use of it by day was not included under the same rent, the statute adds, “ and the liberty of the yard within the same in the day timethat is, he is entitled to the accommodation of a chamber, not only for the purpose of lodging in it by night, but also for the purpose of spending his days there, in the exercise of the liberty of the yard ; and all this for a sum not to exceed two shillings a week. So that this clause of the statute, as well as that which prescribes the condition of the bond to be taken, like the former statutes on the subject, and the common law, makes no distinction between the night and the day.
    The practice upon the statute seems to have been different in different parts of the state. In some counties, certainly, it has been conformable to the construction for which I contend ; and a contrary decision would subject many persons to liabilities, to which they have never conceived themselves exposed. To them, the law so construed would prove a trap; and although expediency is generally more proper for legislative than judiciary consideration, yet an argu ment ah inconvenienti has always been considered a fair mode of reasoning on the construction of statutes.
    
      The solicitor-general, in answer to the first objection urged by the attorney-general, observed that the provision for the bond in these cases, being approved by two magistrates, was evidently introduced for the benefit of the debtor, to prevent [ * 93 ] #his being arbitrarily kept in close confinement, when he was able to comply with the terms which the humanity • of this statute had prescribed for his more comfortable situation: perhaps, too, it was intended to protect the sheriff against the action of the creditor for accepting insufficient security. But, in any view, it was no concern of the creditors. It was the concern of the debtor to see that all such formalities were observed as the law had prescribed to entitle him to the benefit he sought. The creditor had no agency in the business; he could have none. He may waive the claim he has, and it is not for these obligors to take advantage of their own neglect, in avoidance of their bond solemnly executed under their hands'and seals.
    As to the second point, which he thought had very justly been considered by the defendant’s counsel, as the principal one in the cause, the solicitor-general observed, that apart from the special provisions of this statute, the facts clearly amounted to an escape. This needed no argument to support it.
    The inquiry then was necessarily confined to the statute, and it tvas to be shown whether, within'all the liberality of its provisions, ¿his was still an escape, by which the penalty of the bond was forfeited. Upon this point the words of the statute are plain, and admit of no doubt; they need no construction. They are, that a person, situated as the defendant Willis was, after executing the bond, shall be permitted and allowed to have a chamber and lodging in any of the houses or apartments belonging to such prisons, and liberty of the yard within the' same in the day time, &c.”
    Perhaps a strict construction would lead to the conclusion that the debtor was to be closely confined during the night; but I will not contend for this: perhaps a contrary inference may be plausibly drawn from the permission to take a chamber and lodgings in any of the apartments, &c. I will not insist that the prisoner had not a right to occupy the apartment described in the judge’s report during nights; but 1 do contend, with confidence, that the whole liberty he was indulged with of going out of that apartment, the whole liberty of the yard, is, by a fair and even necessary construction of the statute, limited to the day time. No words intended *to enforce this position, could make it clearer. And this [ * 94 ] I have always understood to be the practical construction through the state.
    
      The Solicitor-General then quoted from memory several cases in which this construction had been supported by the courts of the state, in one of which he remembered that the limits of the prison-yard had been extended by the Court of Sessions so as to include many dwelling-houses of citizens; and he insisted that this was not within the legitimate authority of the Sessions. The sheriff, he observed, had a right at all times to visit every part of his prison ; but he can have no right to come into the house of a citizen without his consent.
    
      Parsons, C. J. The Sessions have certainly no authority to include the houses or land of an individual within the limits of the prison-yard; it is doubtful whether they can lawfully extend it over any part of the highway.
    
      Dexter, for the plaintiff,
    said, as to the first point made by the defendants, that, if the creditor questioned the sufficiency of the sureties proposed to be given by the debtor, the latter may, by the statute, call in two justices, whose approbation was, on the one hand, to justify the sheriff for permitting the debtor a liberty not allowed by the common law, and, on the other, to prevent a hard or merciless creditor from interposing himself between the debtor and the humane provisions of the statute. If neither the sheriff nor the creditor had any doubts as to the sufficiency of the sureties offered, there was no occasion to ask the opinion of two magistrates or of any one else. A different construction would lead to the absurd position, that when the sheriff, the creditor, and the debtor, are all agreed upon a point which concerns themselves only, their agreement shall have no force unless sanctioned by two justices.
    In arguing upon the second point, viz., whether in this case there had been an escape, Dexter defined a prison to be a building or other inclosure designed to restrain persons committed to it of their liberty, and appropriated and competent to that purpose. If this was a just definition, the defendant Willis, by the fact stated in the report of the judge, committed an escape, unless he brings himself within the provision of the statute, pursuant to which the bond, on which this action is * brought, was given. By a [ * 95 ] careful examination of the statute, it will be apparent that the liberty of the yard is confined to the day time, and that during the night the debtor is restrained to the apartment which he hires, and in the day time he is to have the liberty of the yard, subject, however, to the restriction that he is still to confine himself within the limits of the prison; by this last expression evidently intending the limits of the prison-yard. If this is a correct interpretation of the statute, the defendant Willis, by passing out of his apartment, and being in the yard in the night time, exceeded the permission granted him, and to every intent committed an escape. He did not continue a true prisoner in the custody of the jailer, and within the limits of the said prison, until he was lawfully discharged. He then broke the condition of the bond, and the plaintiff’s action is well maintained. Here Dexter discontinued his observations, per ceiving that Story had now come into court.
    
      Story,
    
    being desired by the Court to state his points and authorities, did not insist on the first objection, arising from the want of the approbation of the two justices; and in support of the second, that here was no escape, he argued in substance as follows:—
    In order to decide the question of escape, it may be necessary to consider the common law in respect to jails, and to the duty and authority of sheriffs in relation to the prisoners therein.
    As to the first question, What is a jail, and what are its limits ? A jail is not a place certain, but goes with the person of the jailer .
    Every county hath two sorts of jails, viz., one for the debtors, which the sheriff may appoint in any house where he will, and the other jail for criminals, which is the county jail .
    The sheriff may remove his jail from one place to another within his bailiwick ; yet he must keep it and his prisoners within it, and not suffer them to go at large out of the prison, though himself be attending them .
    [ * 96 ] * There seems nothing in the books which shows us what are the limits of jails at common law. They must have been fixed by custom, or by the land appertaining to the mansion, or by rule of court, or by the authority of the sheriff. Many cases might be cited to show that the limits were not considered the mere walls of the mansion ; as—
    
      B. was in execution in the Fleet, for £12,000, and being there, he had the liberty of the garden, and to play at bowls; and upon motion to the court, it was ordered that he should be in strict custody in his chamber .
    So, on motion, alleging that a defendant in execution for debt, lived at his pleasure without restraint, he was restrained of his liberty by order of the court .
    
      So the sheriff had one in execution, whom he kept in a private tail by himself; and when a new sheriff was appointed, he offered to deliver him over to the new sheriff, but he refused to receive him unless at the common jail, and afterwards the prisoner escaped. On action brought against the new sheriff for the escape, it was adjudged not to lie, for the old sheriff was liable .
    In all these cases, if the acts of the sheriff were not legal, he would have been liable for an escape.
    Tne authority of the sheriff in relation to jails, and the prisoners therein, is no where expressly defined; but from the preceding cases, and those hereafter mentioned, it is confidently argued at common law the sheriff has a right to let his prisoners go in any place or places within the limits of the prison, and is not compellable to keep them within the walls of the mansion-house.
    
    The leading cases against the sheriff for escapes are Balden vs. Temple, before cited, Platt vs. Lock 
      , Hobart and Stroud 
      , and Boynton's case ; all of which are for escapes without the limits of the prison, and so admitted on * all [ * 97 ] sides. And there is no case in the books where an action for an escape has been held to lie against the sheriff for any liberty or indulgence granted to prisoners within the limits of the prison.
    
    The cases of a feme jailer marrying her prisoner, of a prisoner having the inheritance of the jail cast upon him by descent (cited Plowden, 17), and of a prisoner appointed turnkey (in cases Temp. Hard.), stand all on distinct reasoning, arising out of the peculiar facts. Indeed, in the latter case, there was an actual escape without the limits of the prison.
    As to the case cited in 3 Co. 44, in Dyer, 249, and 1 Roll. Abr. 817, from the Star Chamber, that those who are in execution shall not go at their liberty within the prison, nor out of the prison with the keeper, but shall be kept in strict ward, it does not come strongly recommended in respect of the court who decided it; and it contradicts the doctrine argued by Coke, and admitted by the court in Cro. Eliz. 167, that a jail goes with the person of the jailer. It seems a relic of the old doctrine adopted under the statute of Westm. 2. c. 11, that the sheriff should bind accountants in execution in irons, and should keep them in salvo et arcta custodia.—2 Inst. 381. 1 Roll. Abr. 807, l. 5.—And if the law were so, it seems strange that motions should be made in court to have them restrained, when the party has his remedy at law for an escape; as in the above '■a<es cited, and 3 Bulst. 149.
    
      As to the case in 2 Mod. 221, it was merely as to jurisdiction in civil process; and is quite as much in our favor as against us. The court did not there consider the prisoners being without the walls and within the liberties as an escape.
    As to the case in Hetl. 32, it rather proves our construction. It says that removing prisoners out of the county without a command, or within the same county, if for their ease and delight, as to a bear-baiting, by Harvey, J., or to go to work for their benefit, by Hutton, J., is an escape.
    As to the case cited from Brooke, Escape, pi, 14 , that a feme imprisoned in a castle leaped over the castle wall into the ditch of the said castle, and the warden of the castle f * 98 ] levied *cry and retook her, and yet it was adjudged an escape; if taken as a case of. negligent escape, it is clearly not law; but it may be right if the ditch were the prison boundary, and the escape voluntary.
    These are all the cases I have met with on the doctrine, and with submission I conceive they do not invalidate my position.
    The practice in England seems to confirm it. For in consequence of prisoners being let at large, and many abuses happening, the stat. 8 and 9 Will. 3, c. 26, enacted that all prisoners in execution, &c., shall be actually detained within the said prisons of King’s Bench and Fleet, and the respective rules of the same, and if the keeper should suffer them to go at large without the rules, it should be deemed an escape. By this statute the rules are to all intents and purposes the same as the walls of the prison . In the case now referred to, it was urged by counsel that the marshal had not the authority to let the prisoner go at large within the rules without a guard, which was not admitted by the court. The object of the statute was to remedy the abuses, and if it be not merely affirmative, it seems designed to narrow, and not to enlarge existing privileges; and so is the preamble.
    The provincial statute of 4 Geo. 2, c. 1 (1730), enacts, “that any person imprisoned for debt, either upon mesne process or execution, shall be allowed the liberty of the prison-yard, the prisoner, with two sufficient sureties, giving bond to the sheriff for his keeping within the limits thereof, until lawfully discharged.” This was a temporary act, and seems to have been the first, by which jailers were compellable to grant the liberty of the yard to prisoners. As the words of that statute contain no limitation, the liberty might be claimed as well by night as by day; and probably, from inconveniences growing out of that license, the subsequent act of 14 G. 2 
      c. 5 (1740), which is substantially like our present one, restricts its imperative provision to the day time.
    The statute of 1784, c. 41, contains no negative clause in respect to the officer. If, therefore, at common law he had a * right to allow, at his discretion, the prisoners any [ * 99 ] indulgence within the limits of the prison, that discretion is not at all restrained. The statute is merely mandatory as to the right of the prisoner in the day time, and no farther. Nor does it seem to have been the intention of the legislature at all to regulate the conduct of the officer; the provision is confined to the relief of the imprisoned debtor. The condition of the bond, which in all the statutes on this subject is substantially the same, contains not a syllable respecting the liberty in the day time only, but leaves the question of escape, or not, to be decided at common law.
    With respect to the limits of the prison and of the prison-yard, were it material to the present question, I should consider that they were different and diverso intuitu ; the former comprehending the common law limits, which, it is submitted, would be the prison-house and the appurtenances, and the land belonging thereto, of which the jailer had an exclusive possession, and within which he had a right at all times to hold the custody of his prisoner; the latter as purely the boundary fixed under positive statute for the convenience of debtors confined within the prison. But as, by the state of the case, the debtor here was within the common law limits, it may be necessary to our present purpose to consider this part of the subject further.
    The statute of 1874, and the statute of Will. 3, seem to have made the walls of the prison and the prison-yard, for the purposes of the present inquiry, the same. The words are, that the debtor shall have the liberty of the yard within the prison; clearly showing that the prison extends to these limits ; and therefore, as to all the rights and duties of the jailer, the debtor is in prison at all times when he is within the yard. He may not claim it as aright, except in the day time; but he is still within the prison, though he should be permitted it in the night. If so, upon the correct construction of the statute, considered by itself, the verdict cannot be sustained; but if I am right in respect to the duties of the officer at common law, the same decision must arise. Indeed, I am not aware, in the latter view, that any tenable construction of the statute can be made to support the verdict.
    * Contemporary practice in doubtful cases is certainly [ * 100 ] proper to be resorted to in the exposition of statutes; and it is confidently believed that, in many counties in this state, the practice has frequently comported with the principles of the present argument. Yet very many cases must have occurred, in which the money to be recovered was a large sum, and the acquiescence of those interested is a strong proof of the general sense of the profession. Should the present practice be determined to be against law, innumerable suits from the cases within the last twenty years, as well as great individual injustice, will arise.
    
      Dexter
    
    was proceeding to finish his argument, when the Court informed him that at present he had no occasion to labor the cause further for the plaintiff.
    
      
       1784, c. 41. § 6.
    
    
      
      
        [Clap vs. Cofran, 7 Mass. 98—Freeman vs. Davis, 7 Mass. 200.—Burrows vs Lowder, 8 Mass. 373.—Call vs. Hagger, 8 Mass. 423.—Ed.]
    
    
      
      
        Smith vs. Hillier & Al., Cro. Eliz. 167, cited 14 Vin. Abr. Jail, A. 2, and in 6 Bac. Abr. Sheriff, H. 5.
    
    
      
      
        Latch, 16, cited 14 Vin. Abr. A. Jail 4, and in Bac. Abr ubi supra.—Sid. 318 1 Ld. Ray. 136.
    
    
      
      
        Balden vs. Temple, Hob. 202, cited Bac. Abr. Sheriff, ubi supra
    
    
      
      
        Beecher’s case, Noy, 38, cited 10 Vin. Abr. Escape, A. 17.
    
    
      
      
        Scrivin vs. Wright, Bulst. 145.
    
    
      
      
        Popham, 85, Cro. Eliz. 366.
    
    
      
      
        Plow. 35.
    
    
      
      
        Cro. Car. 209.
    
    
      
       3 Co. 43.—Vide, also, 9 W. Bl Rep. 1048
    
    
      
      
        Vin. Abr. Eswan E 5.
    
    
      
      
        Bonafous vs. Walker, 2 Term R. 126.
    
   The Court having taken time for advisement, their opinion was, at an after-day in the term, delivered as follows, by

Parsons, C. J.

The defendants move for a new trial on two grounds. 1. Because the judge admitted the bond declared on to go in evidence to the jury, when there was no evidence that the sureties had been approved by two justices of the peace quorum unus.

2. Because the evidence in the cause did not prove that Willis had committed an escape within the true intent of the condition of the bond.

The direction of the statute that the sureties should be approved by two justices is given to prevent oppression in the creditor by his refusing the bond, when the sureties are sufficient. If, therefore, he does not allege the insufficiency of the sureties, but is satisfied with them, and agrees to take the bond, the intent of the statute is complied with, and there is no necessity for the approbation of the sureties by the justices, to entitle the debtor to the privileges and liberty granted by the statute, or to indemnify the sheriff for allowing them. The debtor’s not obtaining this approbation clearly cannot be given in evidence under the plea of non est factum. But if it could have availed the defendants by specially pleading it, we should have been willing to have granted a new trial, with liberty for the defendants to plead it; but we are all satisfied [ * 101 ] that the objection, in whatever form it * might have been made, could not have prevailed, and that a new trial on this ground ought not to be granted.

To support the motion on the second ground, the defendant insists that the yard appurtenant to the jail is a part of the prison ; that while the debtor remains in any part of the prison, he does not commit any escape; that at common law the sheriff might allow the debtor the liberty of the yard at all times ; that the statute does not restrict the power which the sheriff before had, but is only mandatory; and that it appears from the report of the judge that the prisoner was not without the jail-yard. From these premises they conclude that no escape within the condition of the bond has been committed.

If these premises are correct, the conclusion seems to be just.

At common law, the sheriff had power to appoint his own prison in any part of his county, in which he might confine debtors in execution. The intention of imprisonment for debt is, that the creditor may hold the body of his debtor as a pledge for the payment of the debt. The value of this pledge must depend on the ability and inclination of the debtor to pay. If he is not able, it is worth nothing, and after the expiration of thirty days, two justices of the peace, each being of the quorum, may, on his application, discharge him from his imprisonment. If he has ability to pay, he is to be restrained of his liberty, until he is willing to satisfy his creditor. And for this purpose the law obliges the sheriff to keep him in salvo et arcta custodia until he pay the debt. And that he may be safely and closely kept, he must be confined in some nouse appropriated by the sheriff for his prison for debtors in execution. And it is a rule of law that a prisoner, who is in execution for debt, ought not to be suffered to go at large or at his liberty, neither within the prison, nor without the prison . And to suffer a prisoner to have greater liberty than the law allows, is an escape . The escape is committed by being out of the lega, custody of the sheriff; and if the debtor has a liberty inconsistent with '* that custody, he cannot be said to [ * 102 _ remain in legal custody. These observations are confined to sheriffs, who have the appointment of their own jails for debtors in execution. For if these sheriffs could lawfully make not only any house, but any lands of their own, a prison for debtors, and could give the debtors the liberty of all those lands, the design of the imprisonment, to compel a wealthy debtor to pay his debt, would be in a great measure defeated. A lord of an extensive manor might be made a sheriff, and he might make the whole manor his prison for debtors, taking bonds from them to continue true prisoners within his prison.

The defendants’ counsel have cited some cases respecting escapes from the Marshalsea and Fleet prisons. These prisons come under a different consideration. They are not the prisons of the sheriffs; they are kept by the marshal and warden, and may be located by the rules of the courts to which they respectively belong. By these rules lands and houses adjoining to these prisons are made a part of them, so far that debtors in execution may be in lawful custody within the rules; and it is no escape, unless they go without tire rules. This liberty arose from the prisoners being so numerous (hat the house would not hold them . But it is still in the power of the court, to which the prison belongs, to restrain any debtor from the liberty of the rules. And if, after such restraint, the debtor have the liberty of the rules, it will be an escape

The common law upon this subject has been in some respects altered by our statutes. Here the Court of General Sessions of the Peace can alone erect and maintain jails; and they have the power of locating them, so that they are placed within the towns in which the courts are by law holden. Besides the jail-house, the Sessions may erect houses or apartments belonging to the prisons, and may fix the boundaries of the yard appertaining to the jail; and these houses and apartments, together with the yard, may be considered as part of the prison. The sheriff has the custody of the jail, and of all the prisoners lawfully committed. The county are answerable to him for any escape of a debtor [ * 103 ] through #the insufficiency of the jail, for which he has been holden liable to the creditor.

Neither the Sessions, nor any other court, nor the sheriff, can alter the nature of that custody, in which he is obliged by the common law to keep debtors committed to him in execution. This custody must be safe and close, and the debtor must be confined, not only within the prison, but within the jail-house. This imprisonment, required by the common law, was supposed to be, in certain cases, unnecessarily rigorous; and the legislature, by the provincial statute of 4 G. 2, c. 1, interposed for the relief of debtors. The provisions of that statute, long since expired, have been substantially reenacted by the statute of 1784, c. 41, only substituting for the obligee the creditor in the place of the sheriff.

By this statute any prisoner for debt shall be allowed to have a chamber and lodgings in any of the houses or apartments belonging to the prison, and liberty of the yard ivithin the same in the day time, but not to pass without the limits of the prison, upon payment of reasonable chamber rent. Provided he give bond with sufficient surety or sureties to the creditor in double the sum for which he was imprisoned, conditioned that, from the time of executing such bond, he will continue a true prisoner in the custody of the jailer, and within the limits of the prison, until he be lawfully discharged, without committing any manner of escape.

From the language of this statute it is manifest that the legislature intended to give the debtor a privilege he could not before legally enjoy. It is not mandatory to the sheriff to grant indulgences to debtors, which he might have granted at his pleasure but it vests in the debtor a right which the sheriff is obliged to allow. If, before the statute, the sheriff might have allowed to debtors chambers in the apartments belonging to the jail, and the liberty of the yard at all times, he might have taken bonds from them, to indemnify him against their escape, if the intention of the bond was bona fide to secure their imprisonment . And if t ere was an escape, the debtor would only be obliged to pay the sheriff the debt, and the costs he had expended. The statute was * therefore quite unnecessary, unless it be [*104] improperly supposed that the sheriff would refuse a reasonable indemnity, which the debtor now can more conveniently secure to him than by stipulating to pay the creditor double the debt according to the terms of the statute.

This reasoning is confirmed by referring to some former statutes on this subject. By the provincial statute 4 G. 2, a prisoner for debt was to be allowed the liberty of the yard at all times, on his giving bond to the sheriff for his keeping within the limits of it; and if there was an escape, the sheriff was protected against an action by assigning the bond to the creditor, who might thereupon have judgment for his debt. According to the argument of the defendants’ counsel, this statute was merely mandatory, the sheriff having a discretionary power to make the same allowance, on receiving the same indemnity. And yet, by the provincial statute of 7 & 8 G. 2, the provision of this statute was considered as encouraging escapes; to prevent which more effectually, the creditor was enabled to recover on his bond double his debt. Improvident must be the conduct of that legislature to revoke its mandate to the ' sheriff, because obedience to it encouraged escapes, and at the same time to leave with him a discretionary power, the exercise of which must produce the same mischief.

This reasoning is further supported by the construction of the statute, which authorized the giving of the bond declared on. By the eighth section it is manifest that prisoners for debt are to be received and lodged in apartments in the prison separate from felons and must there be confined until they have given the bond required in the ninth section. On giving that bond, they may have a chamber and lodging in other apartments belonging to the prison, paying for - them; and also the liberty of the yard in the day time within the prison. To prevent the excess of this liberty, the bond is the creditor’s security; and if the debtor takes a liberty not authorized by the statute, he does not remain a true prisoner in the custody of the jailer. Upon the defendants’ construction, the condition of the bond allows further liberty than is expressly given by the [ *105 ] statute; which * cannot be admitted consistently with the manifest intent of the legislature.

We are, therefore, all of opinion that, upon principles of the common law, and upon the construction of our own statutes, if a prisoner for debt, having given a bond to obtain an easement from close imprisonment, be found in the night time voluntarily without any apartment in, or belonging to the prison, and in the yard appurtenant to the jail, it is an escape within the true intent of the condition of the bond.

In forming this opinion, we have endeavored to keep our minds uninfluenced by legal precedents. But in fact the present question is not a new one in our courts. In the case of Pond &f Metcalf, in Norfolk, A. D. 1802, where the escape alleged was the debtor’s lodging part of a night in a barn within the boundaries of the jail-yard, the court held that it clearly was an escape, and would not suffer the point to be argued, and declared that it had been frequently adjudged that, if the debtor was in the jail-yard in the night time, it was an escape, and a breach of the condition of his bond. Many other cases are also recollected, in which the same decision was had; and to give judgment in this case for the defendants would contradict other judgments of this Court heretofore rendered, and which were acquiesced in by the parties; and destroy the authority of precedents arising from former judicial decisions.

The case of Heard vs. Baldwin, in Middlesex, has been mentioned as recognizing a different principle. In that case the debtor had given bond to obtain the liberty of the yard in the day time, and in consequence thereof had been indulged with that liberty. On examining the bond, it appeared not to pursue the statute, and of course it would not justify the sheriff in granting that indulgence; but it was holden that, as the debtor had not exceeded the liberty allowed by the statute, it was no escape. If that case be law, it does not militate with the present judgment, for the debtor was not within the yard and without any apartment in the prison in the night time. But we all exceedingly doubt whether that case is law; for a bond not pursuing the statute must be considered as [*106] no bond, and the indulgence of the sheriff was * therefore not authorized by the statute, and was a liberty, to which the debtor was not by law entitled .

Judgment according to verdict.

05” After the opinion of the Court was thus delivered, the plaintiff moved that interest should be added to the penalty of the bond, from the breach of the condition to the day of entering up judgment. The motion was overruled, and judgment ordered to be entered for the penalty of the bond and costs. 
      
      
        Dalt. Sher. 485
     
      
      
        Imv. Sher. 224
      
     
      
       1 Lev. 254.
     
      
      
        Noy. Rep. 38.—1 Bulstrode, 145.
     
      
       1 Saund. 161.—1 Lev. 254.
     
      
       [Vide ante, page 89, note.—Ed ]
     