
    Sabra Clap, Administratrix of Ezra Clap, versus John Cofran.
    Though a bond, for the liberty of the jail yard, be taken for less than double the sum for which a prisoner is committed, and so is not within the statute, it is still a good bond at common law ; but the debtor may be relieved against the penalty, by a judgment for the sum for which he is imprisoned. Notwithstanding such bond, the sheriff may be charged with an escape.
    Where no records of the Sessions could be found, appropriating apartments in the jail to the use of debtors, but evidence was of such an appropriation by long usage of lodging rooms for debtors, it was held an escape in a prisoner having the liberty of the yard to be out of those rooms in the night time.
    This was an action of debt upon bond. The plaintiff, having recovered judgment against one Jonathan Nutting, for 578 dollars 65 cents damage, and 15 dollars and 97 cents, costs of suit, sued out her execution on that judgment, on which Nutting was arrested and committed a prisoner in the county jail at Cambridge. While thus a prisoner, and to obtain the liberty of the yard, Nutting, as principal, and the defendant, and one Jesse Brown, as his sureties, jointly and severally executed to the plaintiff the bond declared on in this action, in the penal sum of 1189 dollars, with a condition in due form of law.
    [ * 99 ] *The defendant pleaded three several pleas. 1. Non est factum, on which issue was joined, and a verdict found for the plaintiff, the defendant admitting the bond to be his deed. 2. In bar, that the bond was void, not being made pursuant to the statute, as the penalty was not in double the sum for which Nutting was imprisoned. To this plea the plaintiff demurred, and the defendant joined in demurrer. 3. In the third plea the escape of Nutting was traversed, and the issue was, whether he had or had not committed an escape.
    
      The chief justice, before whom both the issues in the case were tried, at the last October term in this county, reported that, on the trial of this last issue, it was proved, or admitted, that the said jail, and the dwelling of the jail-keeper, were under one roof; that on the lower floor there is one room, and on the second floor two rooms, furnished with locks, bars, and grates, and which have been always used as the jail, to confine prisoners lawfully committed; that in the upper story, or garret, were chambers, which have been always appropriated as lodging-rooms for debtors in execution entitled to the liberty of the yard; that on the lower floor are two rooms always appropriated for the dwelling of the jail-keeper and his family, in which prisoners are never confined; and that the whole building is included within the limits of the yard, appurtenant to the said jail; that when Nutting was committed as aforesaid, the said apartments were, and ever since have been, occupied by the jail-keeper and his family, as their habitation. No record of the Court of Sessions of any of the said appropriations, was shown on the trial, but they were proved only by evidence of immemorial usage. After Nutting and his sureties had executed the said bond, lie occupied one of the said rooms in the upper story for his chamber or lodging-room; and since that time, and before the commencement of this action, he was frequently, in the night-time, in the apartments on the lower floor, appropriated for and occupied by the jail-keeper and his family as their habitation.
    [ * 100 ] *on these facts the jury were directed, that, in law, the said Nutting had committed an escape, and that the plaintiff had maintained the issue on her part. But the jury found a verdict for the defendant. The plaintiff moved for a new trial, because the verdict was against law, and against the direction of the judge in a matter of law.
    
      Ward, for the plaintiff,
    insisted that the evidence on the last issue sufficiently proved an escape. As to the second plea, he contended that if the bond was not conformed to the statute, it was not for that cause void. It was not a bond for ease and favor, such a bond oeing always made to the officer. And the penalty, in this case, being less than the statute authorized, the defendant was not injured by the variance. He referred to the case of one Metcalf, in Norfolk, in which it had been decided that a surety could not avail himself of such a variance as this, as it was no injury either to himself or his principal.
    
      Dana, for the defendant,
    was at a loss to discover that the judge had given to the jury any opinion in a matter of law. He contended that as no assignment had ever been made of apartments in the jail by the Sessions, the whole building must be considered as the prison, and equally at the service of the debtor having the liberty of the yard. It certainly was not in the jailer’s power, he said, by his own act, to make a part of the house a jail, and a part not.
    The cause was continued nisi for advisement, and at the following November term, in Suffolk, the opinion of the Court was delivered by
   Parsons, C. J.

The action is debt on a bond, given by Nuttmg, the debtor in execution, and by Brown and the defendant, his sureties, to obtain for Nutting the liberty of the prison-yard. There are three several pleas. 1. Non est factum, on which it is agreed a verdict was rightly found against the defendant. 2. A plea in bar, that the bond was void, the penalty of the bond not being double the sum for which Nutting was imprisoned. To this plea there is a demurrer and joinder. And the plea must be adjudged *bad, unless by law a bond of this description [ * 101 ] is prohibited or declared void.

But we know of no such law. Bonds for ease and favor are void; but they are given, not to the creditor, but to the sheriff, to obtain from him a favor and indulgence, to which the debtor is not legally entitled. If a debtor in execution will voluntarily, without fraud, imposition, or duress, give a bond to his creditor, conditioned that he will continue a true prisoner without escaping, such a bond is not against the common law, nor against any statute. If the penalty be not double the sum, for which the debtor is imprisoned, it is not a bond within the statute of 1784, c. 41, and the debtor may be relieved against the penalty, by a judgment for the sum for which he is imprisoned; but the bond is not void. The creditor is not obliged to take such a bond as his indemnity against an escape; for he may, notwithstanding, charge the sheriff in an action for the escape.

It is probable that this bond was not made pursuant to the statute, for an error in computation, and not from design. Sheriffs should be careful in this respect. If the debtor give no bond to obtain the liberty of the yard, in the day-time, and the sheriff grant him this liberty, it is a voluntary escape in the sheriff. And if the bond, which the debtor gives, is not pursuant to the statute, and the sheriff, upon such unauthorized bond, grants the debtor the liberty of the yard, this will be an escape in the sheriff; for he will not be justified in granting the debtor this liberty, but upon receiving for the creditor such a bond as the statute authorizes. It is our opinion that the second plea in bar is bad.

3. The third plea traversed the escape of Nutting, on which issue was joined. The fact was, that Nutting was frequently in the nighttime in the apartments appropriated for and occupied by the jail-keeper and his family as their habitation, other apartments in the same building being appropriated as a prison; the evidence of these appropriations being ancient usage, and not the records of the Court of Sessions, none of which were produced.

[ * 102 ] * We are satisfied that this was an escape in Nutting, he not being in the night-time in any apartment appropriated for the use of debtors. As to the evidence from usage, it was said at the argument, that it might probably be controlled by a further inspection of the ancient records of the county court. On a new trial there will be an opportunity for this inspectionbut until some record be produced, the ancient usage must be considered as legal evidence. Indeed, without such usage, there was no evidence that any part of the building, in which Nutting slept, had ever been appropriated to the use of debtors. The verdict is manifestly against law, as the evidence was at the trial, and must be set aside.

There is another question not necessary now to decide, as it is suggested from the second plea in bar, and not from the evidence. And it may deserve consideration whether, if Nutting, according to the averment in that plea, has not given a bond to the creditor pursuant to the statute, his availing himself of the liberty of the yard in the day-time be not an escape. But as this fact is not directly before us, we give no opinion as to its legal consequence.

Let the verdict be set aside, and a new trial be granted.  