#### Sabra Clap, Administratrix, &c., *versus*John Cofran.

A continued indulgence by a jailer, in permitting prisoners for debt, who have the liberty of the yard, to occupy apartments not appropriated to their use by the Sessions, is no defence to an action on the bond given for such liberty.

This was an action of debt on a bond given to the plaintiff by the defendant as surety for one *Nutting,*conditioned that the latter should continue a true prisoner, &c., and is the same cause which was heretofore sent to a new trial. (1)

It was again tried at the sittings after the last November term, in this county, before *Parker,*J., upon the same issues as before. The judge before whom this second trial was had, reports that the facts proved were the same which appear in the report of the late chief justice, who sat in the former trial; with the addition of cei tain *373records of the Court of Sessions for the county of *Middlesex,*A. D. 1660, 1655, 1732, 1733, relative to the establishment of a prison in the county. It also appeared, in the case, that it had been usual, for many years past, for prisoners, confined for debt, to be indulged with the use of the kitchen in winter, and also to go out of doors in the evening, keeping within the fenced yard of the jail. The judge directed the jury that, upon the facts proved, the issue ought legally to be found for the plaintiff; * but they [*374] returned a verdict contrary to this direction; and the plaintiff again moved for a new trial, because the verdict was against law and evidence.

*Dana*and *W. Austin*argued,

in support of the verdict, that two verdicts having been already returned in this case for the defendant, upon a full view of the whole facts, it would seem an extraordinary exertion of the authority of the Court to send him to a third trial, and especially in a case of strict right, like the present, where it is very clear, that the principal in the bond intended to keep himself within the condition of it; and if that condition was broken, it was by inevitable mistake; when it is considered, too, that the defendant is but an innocent and humane surety, the case wears a still stronger appearance of hardship. (2)

When a jail is erected by lawful authority, the whole space contained within its four walls is the prison; and so continues, until a specific appropriation of some of its apartments by the Sessions for the reception of prisoners, after which, perhaps, the remainder must be considered as excluded.

It may be made a question, whether the bond given for the liberty of the yard covers an escape made in the night-time. The jailer may be liable, while the sureties are not holden.

*Ward,*for the plaintiff,

considered this to be merely a struggle between the Court and juries, to whom should belong the decision of the legal questions arising in the case. On such a point he apprehended he had no occasion to argue to the Court. The evidence and the direction of the judge at the last trial were substantially the same as in the former one. If the plaintiff was then entitled to a new trial, he has the same claim now.

(1)

X) See *7 Mass. Rep.*98.

(2)

 3 *Black. Com.*392. — 2 *Inst.*28. — 2 *Salk.*644, 646, 649. — 1 *Dallas,*11. — 5 *Binney,*467. — 4 *D. & E.*468. — 2 *D. & E.*4. — 6 *Mod. Rep.*22. — 2 *Wils. Rep.*306 —2 *Caines’s Cases in Error,*29.—2 *Johns.*467

Sewall, J.,

delivered the opinion of the Court.

The plaintiff moves for a new trial, in this case, because the verdict upon the issue to the country, whether an escape or not, amounting to a forfeiture of the bond declared on, was found *374against him, contrary to the evidence and the law; [ * 375 ] * and because the jury, in rendering it, proceeded against the opinion and direction of the Court in a matter of law.

If, upon the facts stated, the law was with the plaintiff, as the judge who presided at the trial directed the jury that it was, a new trial must be granted.

From a recurrence to a report of the evidence in a former trial of the same issue between these parties, to which the present report refers, and taking into view the additional facts from the ancient records of the Court of Sessions, it appears that Nutting, the prisoner for whom the bond was given by the defendant as a surety, to entitle him to the liberty of the yard, occupied, in the night-time, a room in the upper story of the building in this town which is, some apartments of it at least, the county jail, and in which there are some apartments in the actual occupation of the jailer and his family.

*Nutting’s*chamber, in the upper story, was at the time, either by usage or by a regular order of the Court of Sessions, an apartment appropriated to the use of prisoners for debt; and it is admitted that his passing the night there was no escape. But it also appears that, in the evening, during that part of the twenty-four hours when there is no peculiar indulgence to prisoners for debt in consequence of their bonds for the liberty of the yard, *Nutting*was frequently in the apartments on the lower floor of the house, where the jail-keeper and his family have their habitation.

The direction to the jury, now insisted on for the plaintiff, that *Nutting*committed an escape in being with the jail-keeper’s family in the lower part of the house, and in passing his evenings with them, was expressed by the late chief justice at the former trial; and because they were then disregarded by the jury in their verdict, a new trial was ordered upon the motion of the plaintiff. So far, then, as the decision depends upon the facts proved at the former trial, we must consider the law as settled by the decision of this Court.

It is now argued, for the defendant, that the additional evidence produced at the last trial so far changed the state of [*376 ] * the case as to justify the verdict of the jury; particularly the minutes read from the ancient records of the Court of Sessions, and the proof that it had been usual, for many years past, for prisoners confined for debt to be indulged with the use of the kitchen in winter; which establish as a fact, it is said, that the rooms occupied by the jailer and his family are not appropriated to them, but are a part of the jail, and among the rooms which may be appropriated to the use of prisoners confined for del.t.

*375As to the usage relied on in the case, the evidence, as the report states the result of it, did not prove any known or acknowledged right, but only a permission or indulgence by the jailer, which certainly is not to operate against the principles of law. Prisoners for debt, until the recent statute upon this subject, were all upon the same footing, as to the nature and manner of their confinement, excepting the indulgence granted to such prisoners as had given bonds for the liberty of the yard. But this indulgence was restricted to the daytime by the statute provisions under which this bond was taken and is to be enforced.

Any partial indulgence, depending upon the favor of the jail-keeper, was an abuse of his authority; and, however long it had been continued, we can conclude nothing from it, as to the state of this building, what apartments were the jail, and what the habitation of the jailer. It may be that no distinct appropriation was ever made ; and that the jailer and his family have been obliged or permitted to receive prisoners for debt, as inmates entitled to be occasionally in apartments occupied for the kitchen and parlor of the jailer and his family. The minutes of the orders of the Court of Sessions, in respect to the building, the enlarging and repairs of this ancient structure, give some countenance to the fact supposed in the argument for the defendant — that the whole building is the jail, and that the apartments are, one as well as another, to be distributed and appropriated at the will of the jailer. But the minutes are obscure, and need some elucidation from other evidence ; and we cannot conclude from them, or upon the evidence reported, that all the apartments of the house are, in effect, the jail.

* The attention of the jury seems not to have been [ * 377 ] directed to this inquiry; and their verdict was probably dictated by what they may have thought the hardship of the case, or by the supposed right of the prisoner, under the usual indulgence of the jailer. If he was authorized to admit prisoners for debt as, inmates of the apartments occupied also for his family, —and he was, if there had been no distinct appropriation of apartments to the uses of a jail, — the case is with the defendant upon the additional evidence.

But this is not established by the evidence as reported; and without some evidence to that effect, or until the jury have determined the fact upon such evidence as they may have respecting it, and upon legal principles, the direction given at the last trial must be considered as correct; and the verdict ought to have been for the plaintiff.

The verdict is set aside, and a new trial is granted. (1)

(1)

 See' *Partridge*vs. *Emerson,*9 *Mass. Rep.*123, and the cases cited in note *(a)*