#### * James M’Lellan and Others *versus*William A. Dalton and Others.

The yard of a prison, enclosed with a picket fence twelve feet high, containing the only necessary-house for the accommodation of the'prisoners, is not an apartment of the prison within the meaning of the statute of 1784, c. 41, § 8, not having been assigned as such.

Debt upon a bond conditioned that the defendant, *Dalton,*a prisoner in execution, *at the*suit of the plaintiffs, should continue a true prisoner, &c.

After oyer of the bond and its condition, the defendants pleaded that *Dalton*did continue a true prisoner in the custody of the jailer, &c., and without committing any manner of escape; to which the plaintiffs replied that he did, on the 2d of January, 1810, and in the night-time of said day, escape from the custody of the jailer, and from the limits of the jail; upon which issue was joined.

The trial of this issue was had September term, 1811, before *Thatcher,*J., when the plaintiffs, to maintain the issue on their part, produced sundry witnesses, who testified that, after daylight was gone, at sundry times in January, 1810, they had seen the said *Dalton*in the yard adjoining the jail, within the picket fence there erected, which is about twelve feet high, with iron spikes on the top thereof. It was also proved that *Dalton*went from the door of the jail to the door of the keeper’s house, within the said yard enclosed by said picket fence, but without the walls of the prison. It was further in evidence, that the said picket fence enclosed the necessary-house for the accommodation of the prisoners committed to the said jail; and that the prisoners at all times were in the habit of passing and re passing through said yard, within said fence

Upon this evidence, the judge instructed the jury that the said yard, so enclosed within the picket fence, ought to be considered in *198the nature of an apartment in, or belonging to, the prison, and that *Dalton*had not committed an escape by going there in the nighttime, as testified by the witnesses. To which opinion and direction of the judge the plaintiffs excepted as erroneous; .and the cause stood over to the last June term for argument, a verdict having been found for the defendants.

*Lee*for the defendants.

*Wilde*and *Coffin*for the plaintiffs.

. * At this term, the action having been continued

under advisement, the judgment of the Court was pronounced by

Sewall, J.

An issue having been joined in this case upon the fact of an escape committed by the defendant, *Dalton,*the evidence at the trial of this issue was, that the prisoner had been seen in the night-time without the prison-house, but in the yard adjoining thereto, which is enclosed with a picket fence. Within this yard, he passed from the door of the prison to the door of the jailer’s house. There was also evidence that the only necessary provided for the prisoners is without the prison-house, and within the same enclosure; from which the jury may be supposed to have presumed *Dalton*to have been in the yard during the night-time for the special occasion of passing to and from the necessary.

The verdict returned for the defendants, that no escape had been proved, was pursuant to the directions and opinion of our brother, who presided at the trial. But the opinion having been regularly excepted to, we are called upon to decide upon the legal effect of. the evidence stated, and not contradicted by any other evidence at the trial; and we cannot concur in his opinion, as then expressed.

As the law was, when this commitment and supposed escape happened, all prisoners for debt were restricted, during the nighttime, to the same mode of confinement. During that part of the twenty-four hours, no difference had been made, until a recent statute. The enlarged custody indulged to a prisoner in execution for debt, upon suitable bonds to his creditor, was during the daytime only; and at night the prisoner was supposed to return to that safe and close custody which the law requires, — to those apartments of the prison from time to time assigned for the purpose by the Court of Sessions.

Upon full consideration of the subject, we think the yard adjoining the prison, however perfect the enclosure might be, or whatever the ordinary or extraordinary occasion for going there, is not, in this sense, an apartment assigned to the prisoners for [ *192 ] the night. We do not say that it might not * have *199become an apartment to that effect, if it had been assigned. The usage of passing and repassing is not of a nature, however proved, to justify a continued negligence of the jailer in this respect ; prisoners being, for the night, restricted to the walls of the prison, *(a)*

*The verdict is set aside, and a new trial is granted.*

additional note.

[See *Lucky vs. Brandon,*1 *Ohio,*59.—F. H.]

(a)

**[Vide *Bartlett vs. Willis,*3 *Mass. Rep.*86. — *Freeman vs. Davis, 7 Mass. Rep.*200.— *Clap*vs. *Capon, 7 Mass. Rep.*98. S. C. —10 *Mass. Rep.*373. — *Burrows*vs. *Lowder,*8 *Mass. Rep.*373. — Sed vide *Emerson*vs. *Partridge,*9 *Mass. Rep.*123 — Ed.]