
    Amos Partridge versus Asa Emerson and Others.
    A prison-yard enclosed, in which is situated the only necessary-house for the use of prisoners, if it has been adopted by usage as an apartment of the prison, and as an indispensable accommodation, may be considered, within a reasonable construction of the statute, as an. enlargement of the chamber or lodgings of a prisoner for debt, who is entitled to the benefit of the yard.
    This was an action of debt on a bond given by the defendants to the plaintiff, conditioned that Emerson, then a prisoner in the jail in Augusta at the plaintiff’s suit, should continue a true prisoner, &c.
    The defendants pleaded that the said Emerson did continue a true prisoner, &e. The plaintiff replied that Emerson, on the 1st day of October, 1806, and in the night time of said day, did escape and go at large without the bounds of said prison and prison-house, and from the custody of the jailer, and issue was joined thereon by the defendants.
    At the trial of this issue, at the last October term in this county, before Thatcher, J., the plaintiff proved that in the fall of the year 1806, Emerson frequently went into the yard adjoining the prison in the night time; which yard was enclosed with a picket fence twelve or fourteen feet high, but was separated from the yard north-east wardly of the prison, which was enclosed with a like fence, and kept constantly locked; the yard into which Emerson went was used by the jailer’s family as a clothes-yard, and it also contained the necessary-house provided for the accommodation of the prisoners, this being the only accommodation of the kind for the prisoners. The said *yard was a part of the ground owned by the county, and duly appropriated as part of the prison-yard.
    The plaintiff contended that these facts proved an escape to have been committed.
    But the judge, who presided at the trial, directed the jury, that by law the said Emerson had a right to go into said yard by night or by day, and that in his opinion, the same ought not to be considered as an escape. A verdict being found for the defendants, the plaintiff excepted to the said directions, and the cause stood over to this term for consideration of the said exceptions.
    
      Wilde for the plaintiff.
    
      Kidder for the defendants.
   Per Curiam.

As the opinion excepted to was expressed, according to the statement in the exceptions, the jury must have .understood that the yard described might be lawfully resorted to in the niglt time, by a prisoner having the liberty of the yard, or indeed Sy any prisoner for debt, however closely confined; for, during the n.ght time, there was no distinction among the prisoners for debt, excepting as to their chambers or lodgings, where they were < to be all alike restrained, as the law was when this escape is alleged to have happened.

We are, upon consideration, not. satisfied with that opinion, which plainly militates with several decisions of this Court, upon the subject of escapes committed by prisoners for debt having the liberty of the jail-yard.

If the case proved had been a case of necessity, and the place resorted to had been, as an apartment of the prison, adopted by usage as an indispensable accommodation, it might be within a reasonable construction of the statute to allow this enlargement of a prisoner’s chamber or lodgings, How this case was, in this respect, is a question upon the evidence. But it was not left to the jury; and the case remains, therefore, undecided, n the particulars upon which a correct decision must rest, in the view of it the most favorable for the defendants that can be admitted. The plaintiff is entitled to a new trial upon his exceptions 
      
       3 Mass. Rep. 86, Bartlett vs. Willis Al.
      
     
      
      
         [In Bartlett vs. Willis, (ubi sup.,) it was held that the debtor committed an escape by going into the prison-yard in the night time. So, in Freeman vs. Davis, (7 Mass. Rep. 200,) and Clap vs. Capon, (7 Mass. Rep. 98, S. C., 10 Mass. Rep. 373,) going into a room in the same house, in the prison-yard, in the night time, was held to be an escape. And in Burrows vs. Lowder, (8 Mass. Rep. 373,) it was held to be clear that in such case “no understanding of the justices, or permission of the jailer, could alter, by enlarging or contracting the accommodations which had been established for debtors;” and that no prisoner was entitled, in the night time, to any indulgence beyond a chamber and lodging in the apartments of the prison. Now the case finds that 
        " Emerson frequently went into the yard adjoining the prison, in the night time * How can the cases be distinguished ? How can the yard be part of the debtor’s chamber or lodging-room ? How could usage or necessity alter the limits fixed by the Sessions ? In M'Lellan vs. Dalton, (10 Mass. Rep. 190,) it was accordingly held that the prison-yard adjoining a prison, where the only necessary-house provided for prisoners was situate, could not be considered as an apartment to which the prisoners might resort in the night time, without committing an escape, however perfect the enclosure might be, and whatever might be the ordinary, or extraordinary, occasion for going there, unless it should have been assigned to such use by the Court of Sessions.— Ed.]
     