
    P. P. F. Degrand versus Richard Hunnewell.
    A prisoner committed to jail in execution is to be in salvó et arda custodió, aa well by day as by night, unless he has given bond for the liberty of the yard.
    This was an action of debt, brought by the plaintiff, as surviving partner of the late firm of Gilman, Langdon, Company, against the defendant, as sheriff of the county of Cumberland, in which he sets forth that the said Gilman, &c., at a Court of Common Pleas holden at Portland on the first Tuesday of March, 1809, recovered judgment against one Ebenezer Storer for the sum of 5279 dollars 70 cents debt or damage, and 26 dollars 97 cents costs; on which judgment, on the 3d day of May, 1810, they sued out a pluries writ of execution, directed to the sheriff of the county of Cumberland, or either of his deputies, in due form of law; and, on the 14th day of the same May, delivered the same to one Joseph M. Gerrish, then and ever since one of the defendant’s deputies, to be duly executed by him; that, on the same day, the said Gerrish, for want of goods, chattels, or lands, of the said Storer, took his body, and him had and detained in his custody for the space of one hour; and then, in no wise regarding the duty of his said office, unlawfully, freely, and voluntarily, suffered him, the said Storer, to escape out of his custody, and to go at large whither he would, without the license and against the will of the creditors, the said damages and costs being then and still unsatisfied; whereby an action has accrued, &c. In a second count, it is alleged that Gerrish took the body of Storer, and committed him to the jail in said Portland, to the custody of the defendant, to be by him detained, until, &c.; and that Gerrish made his return on the same day that he had so committed said Storer, as by the record, &c., with a proferí. Yet the defendant, not regarding the duty of his said office, on the 13 th day of July then next, unlawfully, * freely, and voluntarily, suffered the [*161 ] said Storer to escape from and out of the said jail, and go at large, &c., whereby an action has accrued, &c.
    In a third count, the escape is alleged to have been committed by one Edmund March, deputy jail-keeper under the defendant.
    The defendant pleaded the general issue of nil debet, reserving liberty to give any special matter in evidence; and upon that issue joined, the cause was tried, October term, 1811, before Thatcher, J.
    At the trial, the plaintiff, to prove the issue on his part, produced attested copies of the judgment, execution, and return, as set forth in the declaration; also a letter written by the plaintiff to Mr. Emery, his attorney, requiring him, on the receipt thereof, to cause Storer to be committed to jail upon the said execution; which letter and execution, it was admitted by the defendant, were delivered, on the 14th of May, 1810, to said Gerrish, a deputy of the defendant, for service of the execution.
    Accompanying the exceptions to the instructions of tire judge to the jury, there are detailed recitals of the testimony given at the trial by the several witnesses respectively who were sworn. None of them contained proof of an actual arrest by Gerrish previous to his committing Storer to prison; but of his neglecting to arrest him for several weeks, notwithstanding he had abundant opportunity, there was sufficient proof. In support of the third count, several witnesses swore to their having seen Storer in the jail-yard, and in the apartments appropriated to the jail-keeper and his family, during the daytime; but it appeared, from all the testimony, that he was locked up at sunset, and uniformly kept in close confinement during the night.
    The judge observed to the jury that, to constitute an arrest, there should be a seizure or touching of the person, or having him so confined that he could not escape, and declaring him to be a prisoner ; and he left it to the jury, upon the evidence, whether there was proof of an arrest in the present case, instructing [ * 162 ] them, if they were satisfied that there * had been one, and that the officer afterwards permitted Storer to go at large, for however short a time, it was a voluntary escape, for which they ought to give their verdict for the amount of the execution. The judge also instructed the jury that, if they believed Storer, after he was committed, did actually go into the dwelling-house of the jailer of his own accord, this also would be an escape, because the house of the jailer is no part of the jail; that the jailer might permit his debtors to go from one room or apartment in the prison to another, through the passage-way provided therefor, without suffering an escape; because the whole prison is equally under the jailer’s command, and, so long as a debtor is in any part of the prison, he is within the prison; although the passing from one apartment to another was partly without the walls of the building, but within the high picket fence, provided such was the only mode of getting from one apartment of the jail to the other; and that he had always considered that the jailer’s letting the debtors go into the picketed yard for air and necessary exercise, when health required it, or to the necessary within the said yard, where no suitable accommodation is provided within the jail, — would not amount to an escape.
    The jury returned a verdict for the defendant upon all the counts in the declaration; whereupon the counsel for the plaintiff moved that the verdict be set aside, as against law and evidence, and without evidence to support it, and that a new trial be granted.
    The said motion was argued, at the last May term in this county, by Emery for the plaintiff, and by Mellen and Whitman for the defendant; and the action was continued to this term for advisement.
   By the Court.

There was no evidence of an arrest of Storer by the deputy Gerrish previous to the commitment; nor any evidence of an escape permitted by Gerrish, or of any default on his part, for which the defendant is liable.

For the conduct of March, the jailer, the defendant is liable in this action. A prisoner committed in execution is to he in salvá et arctá custodia. There is no difference * in [ * 163 ] the manner of the custody and confinement to which debtors in execution are liable, who have not complied with the requirements of the statutes enacted for the relief and the mitigation of the imprisonment of debtors, whether by day or by night. The law requires their close confinement at all hours. The verdict in this case is set aside, and a new trial is granted, 
      
      
         Clapp vs. Cofran., 7 Mass. Rep. 101.— Colby vs. Sampson, 5 Mass Rep. 310.
     