
    Fitch, Sheriff, v. Scot & Upson.
    The court will give judgment for the plaintiff notwithstanding the verdict is for the defendant, if upon the whole record, it appears the right of the case is with the plaintiff.
    Action on bond, conditioned, that said Scot, who was in prison upon an execution in favor of Samuel Wales, for £32 18s. lOd. lawful money, should abide a true and faithful prisoner; alleging a breach, that he made his escape from prison on the 11th of November inst. per writ dated 18th of November A. D. 1791.
    Plea in bar- — -That on the 23d day of June, A. D. 1791, between half an hour after four o’clock, and half an hour after five o’clock in the afternoon, said Scot took the oath provided by law for poor prisoners; that the creditor furnished money for his support for twenty weeks from that time, and no more; that said twenty weeks expired on the 10 of November after, between half an bour after four o’clock, and balf after five in tbe afternoon; that said Scot remained a faithful prisoner until twenty minutes after six o’clock in tbe afternoon of said day, and supped at bis own expense; and there being no more money left with said gaoler or said Scot for bis support, be went out of prison as well be might.
    Tbe plaintiff replied — That said oath was administered between twenty minutes after six and seven o’clock in tbe afternoon of said 23d of June; and that money was furnished regularly for said Scot’s support for twenty weeks, and until twenty minutes after six o’clock in tbe afternoon of said 10th, and at twenty minutes after six o’clock in tbe afternoon of said 10th of November tbe creditor left with said gaoler six shillings for the support of said Scot, tbe week then next ensuing. And said Scot made bis escape between six and eight o’clock in tbe morning of tbe 11th of November aforesaid; and that be ought not to be barred without that, that said oath was administered to said Scot, between balf after four and balf after five o’clock, in tbe afternoon of said 23d of June.
    Tbe defendants accepted tbe traverse, and issue was joined to tbe jury; and tbe jury found that said oath was administered between half after four, and balf after five o’clock in tbe afternoon of said 23d of June, and found for tbe defendants their cost. Upon which tbe plaintiff exhibited a motion for judgment in bis favor, upon tbe ground that by tbe pleadings and tbe whole record taken together tbe plaintiff was entitled to judgment, tbe verdict notwithstanding.
   By the Court.

Judgment for tbe plaintiff'; for it appears by tbe plea in bar, that said Scot went out of prison, at twenty minutes after six o’clock in tbe afternoon of said 10th, which was too soon, tbe money left being expended not two hours before; immediately upon which more money was left. If be remained in until tbe next morning and then ‘went out, it was after tbe six shillings was left, and clearly an escape: And it is tbe duty of tbe court to give judgment ’according to law upon tbe whole record. See Sheriff Fitch v. Cook, etc. New Haven, last circuit.  