justices of the peace and of the quorum.---Stat. 1812, ch. 30.

There is no statute which furnishes a remedy for bail in criminal cases, in case an escape is apprehended before the term when the recognizance is returnable. Perhaps he would have a right to retain his principal in any safe place until the court. Under what circumstances, perhaps it would not be easy to prescribe. Some power of this sort is necessarily incident to the relation of principal and bail, and it remains for the legislature to restrict it whenever it becomes an evil.

There is an act which authorizes courts to remit the penalty of recognizances, where the principal defendant has escaped without any fault of the surety.---Stat. 1810, ch. 80,

This statute is extended to all recognizances, whether the suit is brought against principal, sureties, or witnesses. Upon a hearing, upon the return of scire facias, the court may remit the penalty, either in whole or in part, according to the circumstances of the case, and the situation of the party.---Ibid.

In cases where the complainant in a writ of audita querela is in jail by virtue only of the execution, the proceedings upon which the said writ is brought to set aside and annul, the court to which such writ is returnable, or the supreme judicial court, may enlarge and liberate him from jail, and admit him to bail upon his sureties' giving bond with him to the respondent, conditioned if final judgment be rendered for the respondent, that the complainant shall, within thirty days thereafter, surrender himself to the jail keeper to be detained in custody under the same execution, or satisfy the same, and also the final judgment for the respondent. And if the complainant shall surrender himself to the jail keeper as aforesaid, he shall be in custody under said execution as fully, and to all intents and purposes, as if said writ had not been brought, nor the said complainant admitted to bail.---Stat, 1780, ch. 48, sec. 12,

5. Of liberating prisoners confined for larceny.

When any person shall be convicted of larceny, the owner of the goods prosecuting the thief to conviction, shall be allowed against him the amount of the goods not restored, to be charged against him at his place of confinement, and to be paid from his net earnings.

If the convict is sentenced to fine and imprisonment in the common jail, then he shall be required by the sentence, to pay the owner the full value of the goods stolen; and if unable, the court may order him to make restitution, by service to the owner, who shall thereupon be empowered to dispose of him for a term not exceeding three years, as the court may order.

But if the owner does not so dispose of him, within thirty days, or give security to the prison keeper for his support, then the jailer shall forthwith liberate said convict from his imprisonment after the expiration of his sentence, and after the payment of the costs of court, and charges of imprisonment; and if he be unable to pay the same, then the jailer may make application to two justices of the quorum, who shall determine the sum to be paid, and shall order such convict to make satisfaction by service, not exceeding two years, for which time, the keeper may dispose of him in service to any citizen of the United States. And if he cannot so be disposed of within three months, for fine and costs, then the court of common pleas may order him to be discharged upon such security as they think proper.--Stat. 1805, ch. 143.

Persons charged with larceny, when they are let to bail, must likewise recognize in an additional sum, being twice the value of the goods stolen, for the benefit of the owner of the property.---Ibid.

[Upon the subject of discharging prisoners from jail, see further under the title of "The liability of jailers for escapes." Post.]

The jailer may discharge any debtor, if funds are not provided for his support within twenty-four hours. If he represents himself as poor, it is immaterial to the officer whether his representation is true or not.-7 Pick. 217.

D. Of the duty of jailers in admitting debtors to the liberty of the jail yard.

1. Of jail limits.

Although by the rigor of the common law, a prisoner must be confined strictly, within the four walls of the jail, yet this strictness has been relaxed, in some instances, in the case of debtors. But little can be gathered of the history of this privilege from the English books. It would seem that it originated from the indulgence of the jailer to his prisoner, and it became necessary to regulate it by law. The earliest statutes upon the subject, both in England and in this country, are predicated upon the above principles, and are enacted for the purpose of confining the power to the dis cretion of the courts, and of the creditors.-Stat, 1, Rich, ii, ch. 12.-Mass. Col, laws, 1662.

A provincial statute of Massachusetts Bay appears to be the earliest act here, that gave to debtors the right to claim this privilege by furnishing sureties. The preamble and provisions of that act do not contemplate any limits beyond the house, buildings and yard actually inclosed for the jail. The bond was made to the sheriff, and upon his assignment of it to the creditor, he was exonerated from any liability for an escape. Anc. Char. &c. 565,—4 M. Ř. 361.

Soon after the establishment of our present form of government, the courts of sessions were directed to fix and determine the boundaries of the jail yards apper, taining to the several jails in the commonwealth.Stat. 1784, ch. 41.

There was no limit to this discretion, and in some instances they were extended to the exterior boundaries of the shire towns, and even of whole counties.-4 M. R. 361. 3 Greenleaf, 52.

But it is now provided that the boundaries of the exterior limits of the jail yards shall be assigned as follows In the county of Suffolk, the yard shall be co-extensive with the limits of ward number five, in the city of Boston, as defined at the time of the passage of the act; and in every other county, the boun

daries shall be established so as not to extend more than fifty rods from the jail.-Stat. 1822, ch. 86.

It was formerly held that the prison limits could not include houses or lands not belonging to the public; but it is now provided, that any debtor who shall give bonds for the liberty of the yard, may have a chamber and lodgings in any buildings belonging to the prisons, by paying at the lawful rate, and may go into churches and other public buildings, and lodge in, and occupy any apartments by night and day, and enter any estate or building within the exterior bounds of the jail yards or debtors' limits, by a usual express or implied consent of the owners; and all such apartments shall be considered a part of the prison limits.-Stat. 1811, ch. 85-167.

The county commissioners are bound to provide at the expense of the county, sufficient and convenient apartments for debtors, separate from criminals, and at every quarter session, they shall inquire into the state of the prisons, in regard to their security, the condition and accommodation of the prisoners, and shall take such measures as shall best secure them from escape, sickness and infection. Stat. 1784, ch. 42. Stat. 1817, ch. 149.

They shall also allow a chamber and lodgings for such debtors as give bonds for the liberty of the yard, upon reasonable payment to be made for chamber room, to be set and established once in each year, and not to exceed two shillings a week.-Stat. 1784-Ibid.

If any dispute shall arise about the price of articles furnished a prisoner, the commissioners are authorized to hear and determine the same.-Ibid.

When a debtor is imprisoned on execution for debt, and shall not within ninety days from the time of his commitment be discharged from his imprisonment, by taking the oath for the relief of poor debtors, such person shall forthwith be put into close confinement by the person having the care of the jail, and shall so continue until discharged therefrom, by payment of all the executions on which he is committed in close confinement, or otherwise by due order of law.-Stat. 1822, ch. 86.

In fixing the jail limits, the justices or commissioners perform a ministerial act only, and any peculiar benefit resulting to one of them does not disqualify him to act.-3 Greenl. 52.

As, where one of the justices when upon the limits, sanctioned an order to extend them over the whole county.-Ibid.

The extension of the limits over private property, and thereby enlarging the rights of debtors already imprisoned, was not an unconstitutional act.-8 M. R. 468.

So, when the debtors' limits were restricted, by Stat. 1822, ch. 86, the act applied to all persons then imprisoned, and where a prisoner passed beyond the new boundaries, it was held a breach of his bond.-2 Pick. 158.

2. Of taking bonds for the liberty of the yard.

a. How the bond is to be taken.

The jailer is to take the bond of the debtor, with sufficient surety or sureties, within the county, to the creditor or creditors, in double the sum for which the debtor is imprisoned, conditioned that he will not depart without the exterior boundaries of the debtors' liberties, until he shall be lawfully discharged and en a further condition, that at the expiration of 90 days from his commitment, he shall surrender himself at the jail house, for the purpose of being committed to close confinement; unless sooner discharged by payment of the execution, or by order of law. Stat. 1784, ch. 42.—1811, ch. 85—167.—1822, ch. 86.

To prevent oppression under pretence of the insufficiency of the sureties, the bond is to be approved by two disinterested justices of the peace, quorum unus, and the same being approved by them, shall be deemed sufficient; and if the creditor shall refuse to take the bond, the same shall be left with the sheriff until demanded by him.-Stat. 1784, ch. 42.

If the bond is approved by the creditor, the assent of two justices is not required.-Stat. 1811, ch. 167. The provision respecting the approval of the bonds, is made to prevent oppression on the part of the cred