itor; but if the jailer receives the bond without such approval, although he may be liable, in case of its insufficiency, yet it is enough to entitle the debtor to the privilege of the prison limits, and to indemnify the sheriff for allowing them; nor can the obligors avoid the bond for the want of this formality.-3 M. R. 86. c. Of the amount of liability of the surety upon such bond. When the debtor is imprisoned on mesne process, the bond must have its penalty in double the amount that the officer is ordered to attach, and formerly judgment was rendered for this sum without any chancery.-17 M. R. 175.

The statute was peremptory upon this subject; and if the bond was taken, precisely in double the sum for which the debtor was imprisoned, the court had no discretionary powers as to the amount of the judgment, which was always for the penalty.-3 M. R. 86.

But if the bond was not made exactly in conformity to the statute, it was nevertheless considered as a good bond at common law, and the court awarded judgment for such sum as appeared equitably due to the plaintiff.-7 M. R. 98, 209-8. Ibid, 373, 423.

It will be noticed that the statute prescribes that the bond shall be taken in double the amount for which the debtor was confined, and upon a breach by finding of a jury, default or otherwise, the court were to render judgment for the whole amount of the penalty, without chancery. The hardship of this statute led to the act which provides, that if the breach is from accident, or misapprehension on the part of the debtor, then judgment should be rendered for the amount of the execution and costs only.-Stat. 1810, ch. 116.

But a recital of all the attempts of the legislature and of the judicial courts, to relieve against the absolute provisions of this stubborn statute, is now rendered unnecessary, by an act which provides, that in suits upon bonds for the liberty of jail yards, courts shall render judgment for so much money, and no more, as may be due according to equity and good conscience, provided, that judgment shall never be rendered for less than the amount of the execution, with interest and all charges.-Stat. 1823, ch. 67.

d. What constitutes a breach of the bond.

If a prisoner be misinformed by the sheriff, or the jailer, as to the true limits of the yard, and in consequence of such wrong information, pass without the limits of the prison, or if he be placed, by the jailer, in a building which does not belong to the prison limits, it is such an escape as will create a forfeiture of the bond.-7 M. R. 98.-8 Ibid, 423.—10 Ibid, 373.

So, when a prisoner was liberated from prison, without taking the oath, in the exact form prescribed by law, it was held to be such an escape as to render the sureties liable upon the bond.-12 M. R. 319.

The certificate of the justices who undertook to administer the oath, was held, however, to exonerate the sheriff and jailer from any liability for the escape.Ibid.

Any departure from the exterior limits of the jail, even if it is for a moment, or by accident, is a breach of the bond.

So is a neglect upon the part of the debtor to surrender himself to the jail house, at the end of ninety days, that he may be placed in close confinement.Stat. 1822, ch. 86.

But to constitute an escape within the intent of the bond, there must be some agency of the prisoner employed, and a conveying him beyond the limits without his consent, is no escape, if he returns as soon as he has ability.-4 M. R. 361.

As, when a prisoner was visited by sudden sickness, so extreme, that he was carried to a house beyond the limits, without his agency; this would be no escape, if he returned as soon as he had reason and strength, and if he should die before, it would be no breach of the bond.-Ibid.

But, if a prisoner upon the limits be forcibly rescued and carried beyond the limits of the yard, by individuals, or subjects, or by any other force than that of public enemies, or the providence of God, it is an escape, and the sureties upon the bond would be liable.10 M. R. 206.

As, where an armed force claimed the prisoner as an enlisted soldier into the army of the United States, and took and carried him away by force.-Ibid..

If such rescue is made, while the prisoner is in close custody; the sheriff is liable, for having the means to raise the power of the county, no degree of force superior to that is to be presumed, under a government of laws.-Ibid.

When upon the limits, the sheriff has no longer any control or custody over the prisoner, the bond being a substitute for the imprisonment.-Ibid.

A prisoner commits no escape in appearing at the place appointed by the justices for administering the poor debtors' oath, it being left to the discretion of the magistrates to appoint the time and place, and for obvious reasons, it need not be at the jail, but within the limits.-14 M. R. 389.

So, the surety may surrender the principal into close custody, or the debtor may do it himself, and this shall be a discharge of the bond, saving to the creditor the right of commencing an action upon it within one year, for any breach of it, before the surrender.-Stat. 1811, ch. 85-167.

But it is now provided, that if the bond is approved. by two justices of the peace, quorum unus, that the sheriff or jailer shall not be liable.-Stat. 1819, ch. 94. e. Of the liability of the jailer in taking bonds, and of his custody of prisoners upon the limits.

It was formerly held that if the bond was taken in a less sum than double the amount of the execution, that it was not such a bond as the statute required, and that the sheriff and jailer were liable for an escape, in permitting the debtor to have the liberty of the yard.-15 M. R. 276.

As the laws now stand, both here and in Maine, the sheriff has no custody whatever, over a debtor when upon the limits. If the bond is regularly taken, and approved, the creditor has that for his indemnity instead of the custody of the jailer.-Ibid, Stat. 1811, ch.. 85-167.-Maine Stat. 1822, ch. 209.

When some soldiery came upon the limits, and carried away a prisoner, the sheriff was not liable, for

neglecting to raise the posse comitatus, as he would have been, had he been his prisoner.-10 M. R. 206.

So, when a jailer voluntarily discharged and released a prisoner upon the limits, and suffered him to escape, and go at large, the court held the act to be nugatory, as he had no authority over the prisoner, and could not exercise any control over his actions.—3 Greenl. 448.

The bond, although not taken in exactly double the amount for which the debtor is imprisoned, is a good bond at common law.---7 M. R. 200---9 Ibid, 221.

If the creditor accepts it, it is sufficient to exonerate the jailer without the approval, by two justices.---Stat. 1811, ch. 167---Maine Stat. 1822, ch. 208.

And his bringing a suit upon it, is sufficient evidence of his acceptance.---3 M. R. 86---5 Greenl. 355.

The delivery of the bond to the jailer is a good delivery to the obligee.---Ibid.

E. The duty of jailers and other officers in admitting prisoners to the poor debtors' oath.

1. Creditors to be notified.

When any person, standing committed by force of any execution, shall complain that he or she hath not estate sufficient to support him or her in prison, the jailer or keeper of such prison, shall, on such complaint, apply to one of the justices of the peace within and for the county in which such prison is, who shall thereupon make out a notification in writing, under his hand and seal, thereby signifying to the creditor or creditors such prisoner's desire of taking the privilege and benefit allowed in and by this act, and of the time and place for the intended caption of the oath or affirmation.---Stat. 1787, ch. 29.

2. Notification how served.

This notification is to be served on the creditor or creditors of the said prisoner, if he, she, or they live within the commonwealth, his or her executor or administrator; and if such creditor or creditors live out

of the state, upon his or her agent or attorney, who brought forward the suit, on which the judgment was rendered, either by reading the same to him or her, or by leaving an attested copy thereof at the usual place of abode of such creditor or creditors, agent or attorney, at least thirty days before the time appointed for the taking said oath or affirmation, that he, she, or they may be present, if they see cause, and if said ereditor live out of the state, and have no agent or attorney living in the same, an attested copy of such notification shall be left with the clerk of the court, or the justice, by whom the execution was signed; and the notifications of imprisoned debtors on their creditors, may in all cases be served and returned by a sheriff, his deputy, or a constable.-Ibid, 1811, ch. 85.1819, ch. 130.—Ante, 171.

I

3. Form of the oath.

do solemnly swear before Almighty God, (or affirm, as the case may be) that I have not any estate, real or personal, in possession, reversion or remainder, sufficient to support myself in prison, or to pay prison-charges, except the goods and chattels by law exempted from attachment and execution; and that I have not, since the commencement of this suit against me, or at any other time, directly or indirectly, sold, leased, or otherwise conveyed or disposed of to, or intrusted any person or persons whomsoever, with all or any part of the estate, real or personal, whereof I have been the lawful owner or possessor, with any intent or design to secure the same, or to receive, or to expect any prof it or advantage therefor; or have caused, or suffered to be done, any thing else whatsoever, whereby any of my creditors may be defrauded. So help me GOD; (or this I do under the pains and penalties of perjury, as the case may be.)

4. Jailer to liberate on certificate of the oath.

The oath or affirmation being administered by two justices of the quorum, and taken by such prisoner, and a certificate thereof made under the hands and