demanded the prison fees of the creditor, and for non-payment, or security to pay the same, discharged the debtor, it was held that he was not discharged according to law, and the security was made liable for the debt. Meredeth's adm. v. Duval. March term, 1810. 5 H. & M. Reports.

But it is now expressly provided by law, that neither a creditor nor jailor is bound to support a debtor, if he has taken the prison bounds. 2 Rev. Code, p. 36.

(A) Petition of an insolvent debtor for a discharge.

To the worshipful court of county, or, the corporation of or, to JP, or JP and K P, justices, &c. as the case may be.] The petition of A P humbly represents, that your petitioner, who s an insolvent debtor, is now confined in the jail of as a prisoner, n an executior. at the suit of B C, &c. (mention the execution or executions) which he is unable to discharge. He, therefore, prays the benefit of the act of the General Assembly made and provided for the relief of insolvent debtors.

A. P.

(B) Warrant by a single justice to bring the prisoner before the court, while sitting.

county, to wit.

To the keeper of the jail of the said county.

Whereas A J, of, &c. now a prisoner upon execution for debt, in your custody, hath, by his petition to me, JP, a justice of the peace for the county of aforesaid, prayed that he may be discharged out of custody, pursuant to the act of the General Assembly in that case made and provided. These are, therefore, in the name of the commonwealth, to require you to bring immediately before the justices of the peace of this commonwealth, now sitting in court, at the courthouse of the said county of the body of the said A J, together with a list of the several executions with which he stands charged in the said jail; and have then there also this precept. Given under my hand and seal, &c.

With this warrant the jailor must return a list of the several executions with which the prisoner is charged.

(C) Warrant by two justices to bring the prisoner before them, when the court is not sitting.

county, to wit.

To the keeper of the jail of the said county.

Whereas A J, of, &c. now a prisoner taken in execution of debt, and in your custody, hath, by his petition to us, JP and K P, two of the justices of the peace for the said county, prayed that he may be discharged out of custody, pursuant to the act of the General Assembly in that case made and provided. These are, therefore, in the name of the commonwealth, to require you to bring before us, or any two justices

of this county, at the court-house of this county, on the

day of

next, the body of the said A J, together with a list of the several executions wherewith he stands charged in your jail; and have then there this precept. Given under our hands and seals, &c.

Before taking the oath, the prisoner must make and subscribe a schedule of his whole estate, real and personal, &c. See the oath. For the oath to be taken by the prisoner, see 1 Rev. Code, p.

303.

(D) Warrant of discharge.

county, to wit.

A, B, C, D, E, F, &c, (all the members of the court) justices of the peace, and of the court of the said county [or J P and KP, two of the justices of the peace for the county of aforesaid.]

To the sheriff or keeper of the jail of the said county. We hereby command you, in the name of the commonwealth, forthwith to release and set at liberty A J, a prisoner now in your custody, by virtue of an execution against him, at the suit of for the

sum of (if more executions, mention them all) the said A J having complied with the directions of the act of the General Assembly for the relief of insolvent debtors, if the said A J is detained in your custody for no other cause than the execution (or executions) aforesaid; and for your so doing this shall be your warrant. Given, &c. INSPECTORS, See TOBACCO.

JAIL AND JAILER.

FOR BREAKING JAIL, see title PRISON BREAKING.

1. Building and repairing jails. II. Who shall have the keeping of jails. III. Jailer shall receive prisoners. IV. How they shall be maintained; and the fees allowed for maintenance. V. How prisoners shall be restrained and kept. VI. How they shall be delivered. VII. Of jailers permitting escapes.

I. BUILDING AND REPAIRING JAILS.

The power and duty of magistrates in building jails, &c. also the penalty for neglect, and the remedy given the sheriff against the members of the court, for the insufficiency of the jail, may be found in 1 Rev. Code, ch. 67, sect. 13, p. 86.

II. WHO SHALL HAVE THE KEEPING OF JAILS.`

1. The jail itself is the commonwealth's, but the keeping thereof is incident to the office of sheriff, and inseparable from it. 2 Inst.

589.

2. A jailer in fact, is as much punishable for a misdemeanor, as if he were a rightful jailer. 2 Hawk. 134.

3. Judge Blackstone says, jailers are the servants of the sheriff, and he must be responsible for their conduct. 1 Bl. Com. 346.

III. JAILER SHALL RECEIVE PRISONERS.

All felons should be imprisoned in the common jail.

And if a jailer refuse to receive a felon, or take any thing for receiving him, he shall be punished. Dalt. c. 170.

On what terms prisoners of the United States shall be received, see I Rev. Code, p. 43, 342.

IV.

HOW THEY SHALL BE MAINTAINED; AND THE
FEES ALLOWED FOR MAINTENANCE.

1. Lord Coke says, the jailer cannot refuse the prisoner victuals, for he ought not to suffer him to die for want of sustenance. 1 Inst.

295.

2. But the maintenance of prisoners is now provided for by several

statutes.

3. The fees to the keepers of jails, for the maintenance of debtors and criminals, are to be settled by the courts; provided they shall not exceed thirty-four cents a day. See 1 Rev. Code, ch. 213, p. 368, 9.

4. For the maintenance of a runaway, the fee is seventeen cents a day, and twenty-five cents for committing, and the same for releasement. Ibid. p. 246, sect. 7.

How a jailer shall recover his fees of a creditor, for his debtor committed to prison, see 2 Rev. Code, p.186, sect. 7.

V. HOW PRISONERS SHALL BE RESTRAINED AND

ΚΕΡΤ.

1. The county jail is a prison for malefactors; but prisoners for debt, where escape lies against the sheriff for their escaping, may be kept in what place the sheriff pleases. Ld. Raym. 136.

2. It seemeth generally in all cases where a man is committed to prison, especially if it be for felony, or upon an execution, or but for a trespass or other offence, every jailer ought to keep such prisoner in safe and close custody; safe, that he cannot escape; and close, without conference with others or intelligence of things abroad. Dalt.c.

170.

And therefore if the jailer shall licence his prisoner to go abroad for a time, and then to come again, or to go abroad with a keeper, though he come again, yet these are escapes. Ibid.

3. And hereupon it is lawful for the jailer to hamper a felon with irons to prevent his escape. (1 H. H. 601. Dalt. c. 170.) And it is said that a jailer is no way punishable for keeping even a debtor in irons. (2 Haw. 152.) But the learned editor of Hale's History observes, that this liberty even in the case of a felon (much more in the case of a prisoner for debt) can only be intended, where the officer has just reason to fear an escape, as where the prisoner is unruly, or makes any attempt to that purpose; but otherwise, notwithstanding the common practice of jailers, it seems altogether unwarrantable, and contrary to the mildness and humanity of the laws of the commonwealth, by which jailers are forbidden to put their prisoners to any pain or torment. And lord Coke (2 Inst. 381.) is express, that by the common law it might not be done. 1 H. H. 601.

4. And if the jailer keep the prisoner more strictly than he ought of right, whereof the prisoner dieth, this is felony in the jailer by the common law; and this is the cause, that if a prisoner die in jail, the coroner ought to set upon him, and if the death was owing to cruel and oppressive usage on the part of the jailer, or any officer of his, it will be deemed wilful murder in the person guilty of such duress. 3 Inst. 91. Fost. 321, 322.

5. But if a criminal, endeavouring to break the jail, assault his jailer, he may be lawfully killed by him in the affray. (1 Haw. 71. H. H. 496.) For jailers and their officers are under the same special protection, that other ministers of justice are. And therefore, if in the necessary discharge of their duty they meet with resistance, whether from prisoners in civil or criminal suits, or from others in behalf of such prisoners, they are not obliged to retreat as far as they can with safety, but may freely, and without retreating, repel force with force. And if the party so resisting happeneth to be killed, this on the part of the jailer or his officer, or any person coming in aid of him, will be justifiable homicide. On the other hand, if the jailer or his officer, or any person coming in aid of him, should fall in the conflict, this will amount to wilful murder in all persons joining in such resistance. It is homicide committed in defiance of the justice of the commonwealth.

Fust. 321.

6. But forasmuch as the jail is intended, in most cases, for custody, and not for punishment; and confinement itself, especially in such dismal abodes, as it is to be feared many of the jails are, is sufficiently afflictive and disconsolate; human nature will plead for those miserable objects, that their condition be rendered as tolerable as the case will admit of; particularly with regard to cleanliness, which is the parent of health; and wholesome air, which is life itself. A remarkable effect of want of care in this respect, sir Michael Forster takes notice of, in the case of one Mr. Clarke, who was brought to his trial at the Old Bailey sessions in 1750. It being a case of great expectation, the court and all the passages to it were extremely crowded. The weather also was hotter than is usual at that time of the year. Many people who were in the court were sensibly affected with a very noisome smell. And it appeared soon afterwards, upon an inquiry ordered by the court of aldermen, that the whole prison of Newgate, and all the passages leading thence into the court, were in a very filthy condition, and had been long so. What made these circumstances to be

at all attended to was, that within a week or ten days at most after the sessions, many people, who were present at Mr. Clarke's trial, were seized with a fever of the malignant kind, and few who were seized recovered. The symptoms were much alike in all the patients; and in less than in six weeks the distemper entirely ceased. At the time this disaster happened, there was no sickness in the jail, more than is common in such places. Which circumstance, that distinguisheth this from most of the cases of the like kind which we have heard of, suggests a very proper caution, not to presume too far upon the health of the jail, barely because the jail fever is not among the prisoners. For without doubt, if the points of cleanliness and free air have been greatly neglected, the putrid effluvia which the prisoners bring with them in their clothes or otherwise, especially where too many are brought into a crowded court together, may have fatal effects upon people who are accustomed to breathe better air; though the poor wretches, who are in some measure habituated to the fumes of a prison, may not always be sensible of any great inconvenience from them. The persons of chief note who were in the court at this time, and died of the fever, were sir Samuel Pennant, lord mayor for that year, sir Thomas Abney, one of the justices of the common pleas, Charles Clarke, esquire, one of the barons of the exchequer, and sir Daniel Lambert, one of the aldermen of London. Of less note, a gentleman of the bar, two or three students, one of the under sheriffs, an officer of lord chief justice Lee, who attended his lordship in court at that time, several of the jury on Middlesex side, and about forty other persons, whom business or curiosity had brought thither. Fost. 74.

VI. HOW THEY SHALL BE DELIVERED.

1. The jailer being an officer whose attendance is always necessary on the court, and by some acts of assembly is made expressly so (see V.I. p 76.) he should always be careful to certify to the courts, to which the prisoner stands committed, the mittimus, or warrant of commitment, in order that the person accused may receive his trial, and if found not guilty, may be discharged.

2. And if a jailer detains a prisoner in jail after his acquittal, unless it be for his fees (not for meat, drink, or lodging) this is an unlawful imprisonment. 2 Inst. 53.

3. And a jailer must not disobey a writ of habeas corpus, for want of his fees; but the court will not turn the prisoner over till the jailer be paid all his fees. 2 Haw. 151.

VII. OF JAILERS PERMITTING ESCAPES.

I. In criminal cases. II. In civil cases.

I. IN CRIMINAL CASES.

1. If the jailer voluntarily suffers a prisoner to escape, he shall be punished in the same manner as the prisoner ought to have been who Escaped; and if he negligently suffered him to escape, he shall be pun