As, when an officer charged excessive fees in the service of a writ, which was taxed in the bill of costs, and paid by the defendant on the execution, it was held that the penalty was not incurred,―Ibid.

An officer cannot excuse himself from this penalty by shewing that other public officers have usually received like fees in similar cases.-17 M. R. 410-1 M. R. 227.

An action for money had and received will lie against an officer, to recover any excess he has taken over the lawful fees.-Kimball's Case.

If an officer exacts his fees before they are due, it is extortion at the common law.-7 Pick. 279.

The statute which imposes a penalty for taking excessive fees does not repeal the common law, so as to prevent an indictment for extortion.-Ibid.

Extra services, as they are denominated, without any specification of their nature, or of the necessity of performing them, will always be rejected.-Davis' Just. 151.

When there are several warrants against the same criminal, a charge for aid can be allowed only upon one.-Ibid, 192.

The fee bill prescribes, that two hundred and twenty-four words shall constitute a page, in all cases named in the act.-Stat. 1795, ch. 41.

OF JAILS AND JAILERS.

How jails are erected, repaired and kept.

The county commissioners are directed to assess the polls and estates of the inhabitants of the county from time to time, in such sums as are necessary to build and keep in repair a good and sufficient jail in each town where by law a court is to be holden, and to direct the building and repairing such jails at their discretion. Stat. 1784, ch. 41.

The sheriff of each county shall have the custody, rule and charge of all the jails in his county, and of all prisoners therein, and shall either keep the same himself personally, or by his deputy, for which he shall be answerable.-Stat. 1783, ch. 44.

Upon the death of the sheriff, the jailer appointed by him, shall continue in office, and have all the power of jailer, and of the custody of the prisoners, until a successor to the sheriff shall be appointed, and qualified, according to law.-Stat. 1808, ch. 46.

The defaults or misfeasances of any jailer or deputy sheriff, so continuing in office after the death or resignation of the sheriff, shall be adjudged a breach of the bond given by the sheriff.---Ibid.

The governor and council have power to remove such sheriff, and to appoint another, who shall give such bonds, and in the same manner as is required of sheriffs; and the jailer so appointed shall hold his of fice during the vacancy in the office of sheriff.—Ibid.

A. Of the duties of jailers.

1. What prisoners he shall receive.

It is the duty of the jailer to receive and safely keep all prisoners committed to his custody by any competent authority under the laws of the commonwealth.

He is likewise required to safely keep all prisoners committed under the authority of the United States, until they be discharged by due course of the laws thereof. Stat. 1789, ch. 42.

But not if they are committed by any other than the judicial authority of the United States.-Stat. 1813, ch. 97.

2. To keep a calendar of prisoners.

It is his duty to keep a true and exact register or calendar of all prisoners committed to the jail, in a large bound book, provided and kept for that purpose only, containing a distinct and fair list of all the prisoners, with their names, places of abode, additions, the time of their commitment and for what cause, and of such as are committed for criminal offences, a. description of their persons, together with the time when, and by what authority any prisoner shall be liberated, and if any prisoner escapes, the time and manner of the escape shall be noted in the said book.-Stat. 1784, ch. 41.

3. To return a list of prisoners.

Every jailer or prisoner keeper, at the opening of the supreme judicial court, or court of common pleas within his county, shall return a list of prisoners in his custody, certifying the causes for which, and the persons by whom they were committed, and the names of all persons committed during the sitting of the court, that the justices may take cognizance thereof, and make deliverance of such prisoners according to law; and the jailer shall also have his calendar, or register, ready to be inspected by the court. If any jailer makes default herein, he shall be fined at the discretion of the court.-Stat. 1784, ch. 41.

4. Of the manner of keeping and delivering over the papers and books belonging to the jail.

All warrants, mittimuses, writs, and instruments of any kind, or the attested copies of them, by which any prisoner shall be committed, enlarged or liberated, shall be safely kept, and regularly filed in their order of time, and together with the said calendar or regis

ter, shall be safely kept in a suitable box for that purpose, and upon the death or removal of any sheriff, shall be delivered to his successor, under a penalty of fifty pounds, to be paid by the sheriff, his executors or administrators, to any person who shall sue for the same.---Ibid, sec. 6.

5. Power to punish prisoners in certain cases.

If any person confined in jail, upon charge or conviction of crime, shall be unruly or disorderly, or shall wantonly break, injure or destroy any article of bedding, furniture, or the windows of said jail, it shall be lawful for the sheriff of the county, after due inquiry into the circumstances of the case, to order such prisoner to be kept in solitary imprisonment in the most retired and solitary part of said jail, and during such imprisonment, the said prisoner shall be fed on bread and water only, unless other food be necessary for the preservation of life: provided such solitary imprisonment shall not exceed ten days for each offence. If any debtor shall be convicted of either of said offences, before a justice of the peace, upon complaint of the jailer, he shall be liable to the same punishment, for a time not exceeding five days for any one offence.— Stat. 1817, ch. 149.

But this act is not to be construed to take from the keeper of the jail the authority which is by law now vested in him to preserve order in the prison, and strict discipline among the prisoners.

He is liable to the creditor for the escape of any prisoner, either from the negligence of the jailer, or from the insufficiency of the jail; in this latter case, the county shall remunerate him. Stat. ch. 1783, ch. 14.

6. To see to the cleanliness of jails.

It is his duty to see that the jails are kept clean and healthy, and that the walls are whitewashed with lime in April or May in every year, and as much oftener as the court of sessions may order; and also that strict attention is paid to the personal cleanliness of the prisoners. Stat. 1817, ch. 149.

7. Debtors to be kept separate from criminals.

It is the duty of jailers and prison keepers to keep prisoners committed for debt, separate and apart from felons, convicts and prisoners committed on charge of felony or other infamous crimes. Likewise all minors committed on charge of offences, and all prisoners in custody, upon a first conviction or charge of any crime, shall be kept as separate and distinct from known offenders, as the construction and state of the prison will admit.-Stat. 1817, ch. 149.

8. Prisoners not to be allowed spirituous liquors.

No person confined as a criminal, or upon suspicion of a crime, shall be allowed to have or drink any ardent or spirituous liquor, or any mixed liquor, part of which is spirituous, unless the physician of the jail shall certify, in writing, that the health of such prisoner requires it; in which case he shall be allowed the quantity so prescribed, and no more.---Ibid, sec. 3.

The same provisions are extended to prisoners confined for debt, who are supported by their creditors.-Stat. 1823, ch. 148.

9. Penalties for violating the above provisions.

If any jailer shall wilfully, negligently, or unnecessarily suffer prisoners of different descriptions to be confined together, or shall voluntarily or negligently suffer any of the prisoners afore described, to have any spirituous or mixed liquor, he shall forfeit twenty-five dollars to the use of any person suing for the same, by action of debt for a second offence he shall forfeit fifty dollars in like manner, and be rendered incapable of holding the office of sheriff, deputy sheriff, or jailer, for five years. It is made the duty of the grand jury to inquire into and prevent all offences against this act.-Ibid, sec. 4-Stat. 1823, ch. 148.

10. Penalty for neglecting to provide rations.

Whenever the county commissioners, or the mayor and aldermen of any city, shall order and direct what specific rations or articles of food, soap, fuel, or other necessaries shall be furnished for the prisoners confin