ed by the keeper thereof, and he shall neglect or refuse to furnish the same, he shall forfeit penalties provided for selling or furnishing spirituous liquors to prisoners as is provided above in article 9.

11. Penalty for other persons furnishing liquors to prisoners.

If any person shall have in his possession any spirituous liquor, within the precincts of any jail, or house of correction, with intent to deliver the same without the consent of the keeper of the jail or master of the house, to any person confined therein, he shall forfeit not less than five or more than ten dollars, with costs of prosecution, to be recovered by complaint to any justice of the peace, one half to the prosecutor, and the other half to the state.-Ibid.

12. Duty of jailers when births or deaths happen in their jail.

Whenever any birth or death shall happen in any jail, work house, or almshouse, it is the duty of the keeper of such house forthwith to give notice thereof to the town clerk of the town where such house is situated, under a penalty of one dollar, to be sued for by any inhabitant of the town.-Stat. 1795, ch. 69.

When any person imprisoned for debt, or any other cause, shall die, it is the duty of the sheriff, or deputy jailer, to deliver the body of said deceased person to his relations or friends, if they shall request it. If no such application is made, the said officers shall bury the same in the common burying ground; the expenses thereof to be paid by the town where the prisoner had his settlement (if any,) otherwise by the state. Stat. 1811, ch. 102.

13. To obey warrants from the courts respecting convicts sentenced to the state prison.

Courts, who sentence prisoners to the state prison, are authorized to direct their warrants to the warden of the prison, to cause all such convicts, as soon as conveniently may be after sentence, to be removed to the state prison, and all sheriffs, and keepers of jails,

are required strictly to observe and obey all the directions in such warrants.

It is made the duty of the clerk of the court where such conviction happens, to make out such warrants, and deliver the same to the sheriff of the county, who shall cause the same to be transmitted to the warden of the state prison, who shall by himself, or by such person as he may appoint, forthwith to cause the same to be executed and returned.---Stat. 1811, ch. 32.

C. When to discharge prisoners.

In general, the term of imprisonment is expressed in the warrant or precept by which the prisoner is committed. When the time is fixed definitively, there is no discretion to be exercised by the jailer. But by many precepts, he is safely to keep the prisoner, until he performs some duty, or is otherwise discharged by due order of law.

1. Of prisoners committed on mesne process.

The writ directs the officer to keep the debtor so that he may be had at the court to which the writ is returnable; but the object of this is, that he may be taken in execution. It is therefore provided that no prisoner imprisoned on mesne process shall be held above thirty days, next after entering up final judgment upon the writ, unless he shall be taken in execution: Nor shall the prison keeper discharge such person unless judgment is given in his favor within thirty days, unless the creditor shall give an order in writing, for his discharge, and pay the fees of the jailer. Stat. 1784, ch. 28.

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Sheriffs, jailers, and other officers, are likewise directed to discharge, and let to bail all persons by them arrested, or in their custody by force of any writ, bill or warrant, or because of any indictment of trespass, upon reasonable sureties offered, (having sufficient within the county, where such persons are let to bail) to appear at the day and place required by such writ, &c., excepting such persons as are in their custody upon execution, under sentence, for surety

of the peace, committed by order of justices, or under the vagabond acts--Stat. 23, Hen. vi, ch. 10.

The whole authority for letting to bail is derived from the ancient English statute above recited, but under our practice, the power of letting to bail by executive officers, is limited to arrests upon mesne process; in criminal cases, the power is vested in justices of the peace, or in the Judicial Courts.

Jailers are therefore to let to bail all persons committed upon mesne process, and they are to observe the same rules that are prescribed for officers, in taking bail upon the original arrest.-Ante, page 60-62.

The bond must be taken to the sheriff or keeper of the jail, in all cases, whether the arrest be made by the sheriff his deputy, a constable or coroner. If the office of sheriff is vacant, then the bail bond should be made to the jailer himself.-Ante, page 190.

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2. Of prisoners committed on execution.

person committed upon final process is to be kept in safe and close custody, and it is a rule of law, that he ought not to be suffered to go at large, or at his liberty, neither within the prison, nor without the prison.-Dalt. Sher. 485-3 M. R. 101.

But it is not necessary that a prisoner be confined to a particular room within the prison, and no liberties granted to him within the four walls can be considered an escape, unless by construction-as where the jailer marries a prisoner, or where the jailer himself is committed, or where one of the prisoners in entrusted with the keys of the prison.-5 M. R. 310—11 Ibid, 181-Steere vs. Field, 2 Mason, 486.

So, where a coroner or constable arrests the deputy jailer and offers to deliver him into custody, and the sheriff is not present to receive him, it is an escape, not of the coroner or of the constable, but of the sheriff himself, who only has the keeping of the jail, by himself or deputy-5 M. R. 312.

Prisoners upon execution, are to be held until they pay the debt, or be discharged by the creditor, or by order of law, The jailer is authorized to receive the

amount of the execution, and discharge the prisoner at any time.

He is likewise to discharge him upon the order of. the creditor. This should always be in writing, and ought to be upon the back of the execution, or at least be annexed to it, although it has been determined that a verbal order for a discharge is sufficient, and it may be proved by the sheriff.-3 Dyer, 275-2 M. R. 520.

But this case was probably of a commitment upon an execution. A discharge of one in upon mesne process, must be in writing.-Stat. 1784, ch. 28.

When a creditor gave an order for the discharge of his prisoner, and afterwards verbally countermanded it, which the keeper thought he had not power to do, and discharged the prisoner. This was held to be a voluntary escape, and the keeper was liable for the whole debt.-Peake's N. P. cases, 144 in note.

An attorney of record has authority to discharge the judgment and execution, or to give an order to release the debtor from prison.-1 Pick. 347.

But he has no authority to release the debtor, by receiving a less sum than the face of the execution.Ibid.

Nor has he authority to receive notes of hand in payment of the execution, for his clients to collect.13 M. R. 319.

Nor has he any control over the execution, or the body of the debtor after the creditor has paid him his costs, and taken the execution into his own hands.13 M. R. 465.

Persons committed on executions for the recovery of a fine for neglect of military duty, are to be held in prison but six days.-Stat. 1821, ch. 96.

3. Of the discharge of debtors surrendered by their bail.

When any person becomes bail for another, he may surrender him in court at any time before final judg ment in the original suit, and the bail shall be thereby discharged from his suretyship.-Stat. 1784, ch. 10.

So the bail may bring their principal into court, and surrender him before judgment is given upon the scire facias, and upon payment of costs of scire facias, the

bail shall be discharged, and the principal shall be committed to jail, there to remain thirty days in order to his being taken on execution.-Ibid.

If the creditor shall not take him in execution within that time, he shall be discharged upon paying the legal prison fees.-Ibid.

The debtor in these cases is immediately in the custody of the sheriff, or the presiding executive officer of the court, and no order or certified copy of the record is necessary to authorize the jailer to hold the prisoner.-2 M. R. 553.

The prisoner knows for what cause he is committed, and the sheriff may have a copy of the record from the clerk ex officio, whenever he is called upon to justify the imprisonment.-Ibid.

Upon a surrender before a justice of the peace, a warrant or mittimus is to be made out to the proper officers, and this will direct the jailer how long he shall hold the debtor.-Stat. 1803, ch. 132-Ante 173.

So by another statute, the bail may, at any time before final judgment upon the scire facias commit his principal into the custody of the jailer of the county where the arrest was made, or of that in which the writ is returnable, leaving with the jailer an attested copy of the writ, or process, and the return thereon by which the original arrest was made; and the prison keeper is to receive the debtor into custody, in the same manner as if he had been committed by the officer making the original arrest.-Stat. 1817, ch. 146.

If the surrender is after the issuing of the writ of scire facias, the costs of that suit must be paid by the bail.-Ibid.

It is necessary that the bail should notify the creditor of the time and place of commitment within fifteen days next afterwards.-Ibid.

Also, that the jailer exacts security for his board.— Stat. 1824, ch. 124.

It will be noticed, that the statute prescribes no time for the discharge of the debtor, when surrendered after judgment in the original suit; but it has been usual to hold him thirty days after the commitment, in analogy to the time limited for his imprisonment if surren