
    * Ezra Trull versus Moses Wilson and Others.
    The daytime, in bonds for the liberty of the yard, includes that portion of time during which a man’s person and countenance are distinguishable.
    This was also an action of debt, on a bond given by Wilson, a nrisoner in execution, at the suit of the plaintiff and his sureties.
    Issue being taken on the question of escape, a trial was had before Thatcher, J., and the facts proved were materially like those agreed in the preceding case of Patterson vs. Philbroolc fy Al., with this exception, that Wilson was proved to have been in a dwelling-house, which was private property, and not appurtenant to the jail, but within the external limits of the jail-yard, after sun-setting, and before daylight was gone.
    The judge instructed the jury that the facts did not prove an escape; and a verdict being found for the defendants, the plaintiff filed exceptions to the said direction.
    
      Stebbins for the plaintiff..
    
      Bailey for the defendants.
   By the Court.

Since the decision in the last case, the only question to be determined in this action is, whether the defendants are chargeable, on their bond, on account of the time of the prisoner Wilson’s being in a private house.

By the statute of 1784, c. 41, § 9, prisoners having given bond, &c., are to have “ the liberty of the yard within the prison in the daytime.” The expression of daytime, here used, has always been construed to mean that portion of the twenty-four hours in which a man’s person and countenance are distinguishable. In this case, the daylight was not gone, and of consequence there was no escape,

Judgment on the verdi&t.  