
    
      Samuel Burns vs. James Brian.
    
    A sheriff, at his own risk, may permit a debtor confined in jail to occupy any of the apartments of the building, without being guilty of an escape, provided the debtor so confined is not permitted to be without the prison walls, without lawful authority.
    
      Before O’Neall, J., at York, Fall Term, 1842.
    This was an action on the case against the defendant, the former sheriff of York district.
    It appeared, that during the defendant’s sheriffalty, John Evans was surrendered by his bail, in the case of this plaintiff against him, for an assault and battery, in which there was a recovery for $6,000.
    
      The gaol of York is of three stories ; the two first are constructed for the gaoler’s residence ; in the third story-are the prison wards.
    The defendant permitted Evans to occupy and use the first and second story, and did not confine him in the third story until some short time before he left the office of sheriff — he then confined him in the third story. Evans was, however, never outside the four walls of the gaol.
    The presiding Judge thought the facts proved did not constitute an escape in law, and so instructed the jury, who found for the defendant.
    The plaintiff moved the Court of Appeals for a new trial, on the following ground :
    Because his Honor held, and so charged, that the evidence on the part of the plaintiff did not in law make out an escape.
    Witherspoon, for the motion,
    cited Bacon’s Abridgment, Title Escape, (D.,) Public Laws, App. sec. 15 ; 2 Brevard Dig. 138, sec. 8.
    Thompson, contra,
    cited 3 Comyn’s Digest, 644, Title Escape; 2 Brevard’s Digest, 160, sec. 84.
   Curia,per

Wardlaw, J.

Our law provides for the separation of criminal offenders from prisoners confined in jail, but the Act of 1839, as to sheriffs, sec. 26, re-enacting the pre-existing provisions, declares that it shall be an escape, if any sheriff “ shall permit any prisoner to be without the prison walls without lawful authority.” There is nowhere any more precise direction, as to the confinement which debtors imprisoned shall endure; and within this direction, any indulgence which the sheriff, at his own risk, may see fit to extend, seems to consist with the law.

The motion is dismissed.

Richardson, O’Neall, Evans, Earle, and Butler, JJ. concurred.  