
    George Burroughs, Jun., versus Samuel Lowder and Others.
    Where the Sessions had assigned certain apartments in the jailer’s house, which was within the limits of the jail yard, as the chambers and lodging of debtors having the liberty of the yard, and such a debtor had passed his evenings in another chamber of the same house, with the permission of the sheriff and jailer, but had always slept in one of the rooms assigned by the Sessions, he was held to have committed an escape within the condition of his bond.
    Such bond is good at common law, although not taken in double the amount for which the prisoner stands committed; and although the sureties therein are not inhabitants within the county; and in every such case the creditor shall recover the amount of his debt with interest
    Debt on bond. The condition being set forth on oyer had, it appeared that the penalty was to be saved, if Samuel Lowder, one of the obligors, and a prisoner in the jail at Dedham, in the county of Norfolk, on an execution in favor of the present plaintiff, should thenceforth continue a true prisoner in the custody of the jailer, and within the limits of the said jail, without committing any manner of escape.
    The defendants, in their first plea in bar, set forth specially a performance of the condition of the obligation.
    *The plaintiff, in his replication, alleges that on the 2d day of January, 1809, without his license, and against his will, the said Lowder passed out of the custody of the jailer, and out of the limits of the prison, and committed an escape.
    This is traversed by the plaintiff in his rejoinder, on which an issue to the country is tendered by the defendants, and joined by the plaintiff.
    In their second plea the defendants plead substantially, that the bond was not taken in double the amount of the debt and costs in the execution; And in their third plea, that the sureties in the bond did not reside or dwell within the county of Norfolk.
    
    To the two last pleas the plaintiff demurred generally, and the defendants joined in demurrer.
    On trial of the issue to the country before Parker, J., November term, 1810, it appeared, by a copy of the record of the Court of Sessions for the county of Norfolk, that in the year 1803, the east chambers of the house of Samuel Daggett, the jailer, with the joint use of the garret over those chambers, the kitchen, &c., with land west of the same to the highway, were assigned by the Sessions, as within the limits ; and a lease had been executed by Daggett to the county of part of his house, comformably to the above-mentioned order.
    It was proved, that Lowder had frequently been in the south-west chamber of Daggett’s house, in the month of January, as late as 9 o’clock in the evening, the east chambers being uncomfortable and having no fireplaces; but that he always slept in one of the east chambers. — There was a passage from these chambers into the kitchen, and from that to the necessary house and well, and to the highway, without going into the west part of the house.
    It was testified by Daggett, and by several of the magistrates of the county of Norfolk, that the whole of Daggett’s house was considered as within the limits of the prison; and that the order of the Court of Sessions and * the lease were limited to the east chambers for the accommodation of Daggett, that he might oblige such of the prisoners as should be refractory or uncleanly, to keep within those limits.
    The jury were directed, that this testimony, though admitted, was not to be considered as proper evidence against the order of the Sessions, and the lease of the jailer, which were conclusive as to the limits of the prison; and that Lowder, having continued out of the limits assigned by the Sessions, had committed an escape, notwithstanding the design of the jailer, and the members of the Court of Sessions, to indulge prisoners with the use of other rooms than those which had been duly assigned.
    The issue was accordingly found for the plaintiff; and the verdict was to be set aside, and a new trial granted, if the said direc tian was wrong.
    The cause stood over upon the verdict and demurrers to the last March term, for argument on the demurrers, and upon the motion of the defendants for a new trial of the issue in fact, for the misdirection of the judge to the jury ; and it was then argued by Prescott for the plaintiff, and by Davis (solicitor general) and Jackson for the defendants.
    
      Jackson
    
    stated the question upon the judge’s report to be, whether evidence of a usage and custom, or indeed any evidence at all, was admissible to explain or control the order of the Sessions, and the lease taken by them. For if any such evidence could be received, the cause ought to be sent to a new trial, on the issue in fact; the judge having ruled that the order and lease were conclusive evidence as to the limits of the yard. — The object of personal imprisonment for debt is to make the situation of the prisoner inconvenient, so that he may be induced to pay his debt, if he be able, and thereby procure his discharge. The intent of the legislature, in giving a prisoner the liberty of the yard, and a convenient and comfortable apartment for a lodging-chamber, was to lessen the rigors of *such imprisonment in cases where the prisoner’s character would induce his friends to become responsible for his faithful adherence to the condition of the bond. It certainly could never be the intention, under pretence of doing him a favor, to intrap him into a forfeiture of double the amount of his debt, and at the same time to give his creditors ample security for a forfeiture thus inequitably incurred.
    The point intended to be submitted to the decision of the Court by the second plea in bar is, that the bond, not being taken in conformity to the provisions of the statute, is void as being a bond for ease and favor. A bond for ease and favor is not necessarily to the sheriff; one to the sergeant at arms attending the house of commons was held void at common law. 
    
    The statute gives the liberty of the yard only on condition that the debtor give bond, with sufficient surety or sureties within the county. Here the plaintiff confesses, by his demurrer, that the sureties were not resident within the county. The bond therefore is not conformed to the statute, and, the defendants contend, is therefore void.
    
      Prescott
    
    cited the case of Clapp vs. Cofran, 
       to show that an escape liad been committed by Lowder in being out of the apartments assigned by the .¡.Sessions in the evening. To control this assignment, evidence was given of the opinions or understanding of certain justices of the Sessions, and of the jailer. It seems useless to do more than state the point, to show its absurdity.
    In the case above referred to, it was also settled that where a bond was taken for less than double the sum for which a prisoner is committed, as is the case here, though 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 in equity for the sum due on the execution; and this, with interest, is all the plaintiff’s claim in the present action.
    * As to the plea that the sureties were not resident in the county, it is a sufficient answer that this particular provision was introduced for the benefit of the creditor, that he might be able to judge of their sufficiency; but he may renounce a right in traduced for his own benefit. Thus, in the case of Bartlett vs Willis & Al., 
       it was held that the creditor might dispense with the approbation of the sureties by two justices of the peace, which was provided for his benefit. But it does not lie in the mouths of the obligors to make this objection. It was voluntary on the part of the principal and on the part of the sureties ; and if good against the former, it must be good against the latter also.
    
      The solicitor general argued that here was no escape. The order of Sessions, and Daggett’s lease, he contended, included the land west of the east chambers of the house; and if the land was included, so also was the building upon or over the land. The Court will yield to a construction, even if barely plausible, which goes to the relief of the defendants against a circumstance arising merely from misapprehension and mistake. Here was certainly no intentional escape; but, on the contrary, the most studied and scrupulous adherence to what the debtor believed the true limits.
    
      
      
        Hardres's Rep. 44. — Keb. 391.
    
    
      
       7 Mass. Rep. 92.
    
    
      
      
        Mass. Rep. 86.
    
   The opinion of the Court was delivered at the same term to the following effect by

Parker, J.

[After statirig the declaration and pleadings, and the-evidence and judge’s direction at the trial.] A verdict having been found for the plaintiff, agreeably to the direction, a new trial has been moved for, on the ground that the said direction was against law.

But we are all of opinion that the direction given at the trial was right, and that the testimony given to the jury, which the judge directed them not to regard, might lawfully have been rejected ; the only tendency of it being to control the operation of the order of the Sessions, which had become a matter of record, as well as of the lease of * Daggett, which alone made any part of his house apartments belonging to the prison.

The statute of 1784, c. 41, entitled “ an act for providing and regulating of prisons,” in the ninth section provides that persons imprisoned for debt shall be allowed to have a chamber and lodging in any of the houses or apartments belonging to the prison, 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 by the Court of Sessions.”

This statute undoubtedly contemplates houses belonging to the prison, other than and distinct from the prison or jail itself; probably upon the expectation of the legislature, that there would be a dwelling-house for the jailer or prison-keeper, within the precincts of the prison, provided at the expense of the county. In counties where there exists such a house belonging to the county, within the duly-assigned limits of the jail-yard, the Court of Sessions may appropriate any part of such house for the receiving and lodging of prisoners for debt, who have given bond for the liberty of the yard; and if no such appropriation be made by the Sessions, the jailer may lodge such prisoners in any apartments of such house belonging to the prison.

But the house occupied by the jailer may he no part of the prison, nor a house or apartment belonging to the prison, even although it may be within the limits of the jail-yard, unless there be some act of the justices of the Sessions making it such. Now, in the case before us, the house which the jailer occupied belonged to him, and not to the county, and made no part of the prison; until by his lease to the county, and their acceptance of said lease, the parts of his house described therein were adopted as apartments belonging to the prison. The residue of the house, not within the lease, remained the property, and in the possession of Daggett, the owner, and was not under * the control of'the Court of Sessions, or of the sheriff of the county, and so could not be considered, in any view, as belonging to the prison, more than any other house belonging to any other person, which might happen to be within the limits of the jail-yard.

The evidence, which the jury were instructed to reject from their consideration, tended to prove that notwithstanding the order of the Sessions, and the lease, there were other apartments in Daggett’s house belonging to the prison. But this could not be proved by parole; the only proper evidence was the order of the Court and the lease, which were before the jury.

But it is said, that although no part of Daggett’s house but whai is contained within the lease, should be considered as belonging to the prison, yet as, by the understanding of the justices, and the consent of the jailer, the westerly chamber had always been used by such prisoners as the jailer saw fit to indulge, for their accommodation in the evening until bed time, there being no fireplace in the easterly chambers, that prisoners might lawfully be there under such circumstances. It is, however, very clear that no understanding of the justices, or permission of the jailer, can alter, by enlarging or contracting the accommodations, which have been legally established for debtors; and it would be mischievous to give to jailers the power of discriminating between prisoners in the manner contended fpr. Every prisoner, who has given bond, is entitled to a chamber and lodging in the apartments of the prison, if he can pay for them; and no prisoner is entitled to any other indulgence, save the liberty of the yard in the day time.

But even by the testimony given, it appears that the justices and jailer did not contemplate a right in the debtor to lodge in the westerly chamber; but only to remain there until he should retire to bed, when he was to repair to one of the easterly chambers. Now, there is no pretence of a power in the justices to authorize accommodations for one part of the night, which cannot be used during * the whole night. In the day time only the bonded debtor has the privilege of the yard ; in the night time he may have any apartment belonging to the prison. Now the night time is fixed by law, and there is no apportionment of it, so that greater privileges may be enjoyed in one part of it than in the other.

It has, however, been urged with ingenuity, that the true construction of the order itself will bring the westerly chambers of Daggett’s house, as well as the easterly, within the assignment; for it is said that the easterly chambers, together with the joint use of the garret and kitchen, and certain out-door privileges, as also the land west of the same to the highway, being assigned, and the westerly chambers being over land west of the premises, these westerly chambers come within the assignment.

But this construction would be manifestly contrary to the intention of the jailer, who leased only the easterly part of his house, and contrary to the plain intent of the justices of the Court, who describe only the east chambers as within their assignment. Besides which, the land intended to be passed by the lease was, according to the most grammatical construction of the sentence, land lying westwardly of the house, and not land lying westwardly of the easterly part of it; which is the construction contended for in this argument. A new trial is not granted.

There are two other pleas in bar, to each of which there .is ageneral demurrer and joinder. The substance of one of them is, that the bond was not taken in double the amount of the debt and costs in the execution; and of the other, that the sureties in the bond did not reside or dwell in the county of Norfolk.

It was contended by the defendants, that for these causes the bond is void.

With respect to the first, it has recently been determined by this Court in two cases, that a bond given by a prisoner for debt, in which the penalty is less or more than double the amount of the debt and costs in the execution, * although not a bond within the statute, so as to entitle the obligee, upon breach of the condition, to the whole penalty, Is yet good at common law, and upon forfeiture judgment may be entered for the debt and costs only.

As to the other supposed defect in the bond, viz., that the sureties were not persons residing within the county where the bond was taken ; this being' contrary to a plain requisition of the ninth section of the statute, perhaps would deprive the obligee of the right to insist on the penalty. We do not, however, decide this point, the bond being for the other cause determined not to be within the statute. But there is no reason why the bond should not be good at common law, it having been voluntarily entered into for the benefit of the principal, to procure a relaxation of a lawful imprisonment, to which he could not have been entitled, without giving the bond.

Whether the sheriff could not be charged for an escape, he having permitted the party to pass out of close imprisonment, upon a bond not taken according to the statute, needs not now to be decided.

The bond is now accepted by the obligee, and he is entitled to a judgment of forfeiture, if the condition is broken. The second and third pleas are adjudged bad. Judgment must be given for the plaintiff, that the bond is forfeited; and the defendants may be heard in chancery.

The action stood continued to this term for a hearing in equity. From t'ne examination of Daggett, and several of the magistrates of the county of Norfolk, it appeared that the prisoner Lowder, after the bond was executed, inquired, with much anxiety, as to the limits in the house, and was informed that the east chambers and the garret were appropriated as sleeping-rooms for debtors, but that the other parts of the house being within the limits, he might be in them in the day time. He accordingly slept constantly in the east chambers, but spent the days and evenings in the west chamber, where he was seen by the * sheriff of the county, in an evening, and was directed by him that he must not sleep in that room, but might tarry therein at other times.

Jackson argued that the Court, having authority in suits on bonds with penalties to give judgment for so much only as shall appear to be due in equity and good conscience, will here perceive that the escape was perfectly involuntary on the part of Lowder. Indeed, he exercised the most honorable and scrupulous diligence to ascertain his limits, that he might in no event invole his sureties. He was not chargeable even with carelessness. He was misled by the sheriff, the magistrates, and the jailer, on all whom it was most natural for him to place reliance. Such being the fact, it would savor of extreme severity to mulct his sureties in the amount of the whole debt, which exceeds six thousand dollars. The case of Dole vs. Moulton was of an involuntary and inadvertent escape, where the facts and the statute of New York were very similar to those in the present case.

Prescott. That case has been since overruled in New York. But the cases of Clap, Admx., vs. Cofran, and Freeman vs. Davis & Al., in our own Court, have established the principle, that the judgment in equity shall be for the amount of the debt, with interest and costs.

Jackson, in reply. The point was not discussed in those cases. There the amount was small, and probably thought by the parties not worth making a question of. But here the amount is of a magnitude which calls for deliberation, before a party, perfectly free from a charge, amounting even to an indiscretion, shall be held liable for the whole sum, while the legitimate powers of the Court enable them to apply equitable principles to their decision.

By the Court, (absent Sedgwick, J.) We consider this point as put at rest by the cases referred to. Nor is it unreasonable.

The debtor’s body is considered as a pledge for his debt.

It is not for him to say the pledge was inadequate. *If the sheriff is liable for the escape, it is clear that he must be answerable in the sum for which the debtor was held a prisoner Judgment must be entered for the debt and costs, with interest to this time. 
      
       7 Mass. Rep. 98, Clap, Admx. vs. Cofran. — Ibid. 200, Freeman vs. Davis & Al
      
     
      
       2 Johns. Cases, 205.
     