Act of March 2, 1819–January 1, 1820. R. C. ch. 71.

in good repair,) within each respective county and corporation, and at the charge of such county or corporation, one common jail and county prison, well secured with iron bars, bolts and locks. (1) And if the justices of any county or corporation court, shall, at any time hereafter, fail to keep and maintain a good and sufficient prison, every member of the court, so failing, shall forfeit and pay ten dollars, one moiety to the commonwealth, the other moiety to the informer, to be recovered with costs, by action of debt or information in any court of record of this commonwealth. And, moreover, the court so failing, shall be liable to the action of the sheriff, from time to time, for all damages recovered against him, for any escape for want of a sufficient prison; and such sheriff, or his executors or administrators, shall and may sue for the same, by action of debt or information brought in the general court against the justices so failing, or the survivors of them; and, upon recovery in such suit, the judges of the said court are hereby empowered and required, to proportion how much every particular justice of the court so failing, who shall be then living, and the executors or administrators of such as shall be deceased, shall pay respectively, and to enter up judgment accordingly, whereupon one or more executions shall and may be issued: Provided, &c., That it shall not be lawful for the justices of any county or other inferior court, to make an order for the erection of any public building or buildings, unless a majority of the acting justices of such court shall be present, at the time of making such order; or, unless such court shall have, at a preceding term, entered on record their intention of making such order, and caused the sheriff, or other public officer, to summon the justices thereof, to attend at the next court, for the purposes aforesaid. 1792, c. 67, R. C.; Dec'r 12, 1793, c. 17, Ses. Acts 25; 1806, c. 68, ed. 1808; see March 1642-3, act 46, 1 Stat. Larg. 264-5; Nov'r 1647, act 1, Ibid. 340; March 1657-8, act 61, Ibid. 460; March 1661-2, act 42, 2 Stat. Larg. 76; April 1684, act 5, 3 Stat. Larg. 14; Oct. 1705, act 10, 3 Stat. Larg. 267; Nov. 1711, c. 3, 4 Stat. Larg. 26; Oct. 1748, c. 7, § 30, 5 Stat. Larg. 507. [Hereafter, the court of every county and corporation within this commonwealth, shall maintain, and keep in good repair, a good and sufficient common jail and prison, well secured with iron bolts, and bars, and locks, and of a size, and with apartments, sufficient for the convenient accommodation of the prisoners who may, from time to time, be confined therein, so as that convicts, and slaves not convicts, may be confined in apartments separate from each other, and from other prisoners. Such apartments shall also be provided with adequate windows, in good repair, and with fire-places, or stoves. When the jails in any county or corporation within this commonwealth, shall not be such as hereby required, the court thereof shall forthwith proceed to take the necessary measures for rendering the same conformable to this act; and, in default thereof, shall be liable to the penalties imposed by law for failing to erect and keep in repair a good and sufficient. jail. Feb. 12, 1823, c. 30, § 6.]

2. § 18. The justices of every county and corporation shall be, and they are hereby empowered and required to mark and lay out the bounds and rules. of their respective county and corporation prisons, not exceeding ten acres of land adjoining to such prison; which marks and bounds shall be recorded, and renewed from time to time, as occasion shall require; and every prisoner, not committed for treason or felony, giving good security to keep within the said rules, shall have liberty to walk therein, out of the prison, for the preservation of his or her health, and, keeping continually within the said bounds, shall be

(1) Pillory, stocks, whipping-post and ducking-stool. Act March, 1661-2, act 39, 2 Stat. Larg. 75.

Act of March 2, 1819-January 1, 1820. R. C. ch. 71.

adjudged in law a true prisoner. (a) Nov. 1647, act 1, 1 Stat. Larg. 340-1; Oct. 1660-1, act 5, 2 Stat. Larg. 19; Mar. 1661-2, act 42, Ibid. 76; April 1684, act 6, 3 Stat. Larg. 14; act 1705, c. 70, § 2, 3 Stat. Larg. 268; Oct. 1705, c. 10, 3 Stat. Larg. 268; Oct. 1748, c. 7, 5 Stat. Larg. 508; Oct. 1765, c. 22, § 3, 8 Stat. Larg. 120; 1792, c. 67, R. C.

Act of January 7, 1836, Ses. Acts 1835-6, ch. 69, p. 46.

3. § 1. In all cases where it has so happened, or may hereafter happen, that the jail of any county or corporation within this commonwealth has been or may be burnt or otherwise destroyed, it shall be the duty of any two justices of the peace of such county or corporation, upon the application of their sheriff or serjeant, or other officer performing the duties of such sheriff or serjeant, by warrant under their hands, to direct the sheriff of their county, or his deputy, or serjeant of their corporation, or other officer as aforesaid, to remove such prisoner or prisoners, charged with any criminal offence, as may have been committed to the jail so burnt or otherwise destroyed, or may hereafter be committed to the same before the rebuilding thereof, and commit him, her or them to the jail of some adjoining county to be named in the said warrant; and it shall be the duty of the sheriff or keeper of the jail of the county to which such prisoner or prisoners may be removed, to receive into his jail and custody, him, her or them, and he, she or they safely keep, until demanded or required to be delivered up to the sheriff of the county or serjeant of the corporation, or other officer as aforesaid, from which such prisoner or prisoners may have been removed, by warrant under the hands of two justices of his county or corporation; which warrant the sheriff or serjeant, or other officer as aforesaid, shall apply for so soon as the jail of the county from which the said prisoner or prisoners may have been removed, shall be rebuilt or repaired, or in due time, so as to have the said prisoner or prisoners forthcoming at the time appointed for the examination, arraignment or trial, and if in the progress of the examination or trial of the said prisoner or prisoners, it should, in the opinion of the court, be necessary to remand such prisoner or prisoners to the jail of the county from which he, she or they had been brought, it shall be the duty, as well of the sheriff of the county, or the serjeant of the corporation, or other officer as aforesaid, in which the examination or trial may be had, as of the sheriff or keeper of the jail of the county to which such prisoner or prisoners may be remanded, to govern themselves according to such order or orders, as the court sitting upon the examination or trial may make. 4. 2. For the purpose of enabling the said sheriff or serjeant, or other officer as aforesaid, to carry into execution the duties required of him by this act, he is hereby vested with all the powers and privileges granted to sheriffs for conveying persons charged with offences punishable by confinement in the public jail and penitentiary-house, from a county different from that in which the culprit was arrested, to that in which the offence charged was committed, and shall moreover be allowed the same compensation for such services, as is allowed to sheriffs for removing criminals from the jails of the superior courts to the penitentiary-house, to be paid in like manner as other expenses for criminal prosecutions.

(a) A debtor, within the prison rules, is a true prisoner in the eye of the law, and, as such, should be transferred by the sheriff to his successor in office. Meredith's adm'x v. Duval, 1 Munf. 76.

After the sheriff has taken a prison bounds

bond from the debtor, he has no power to authorize or prevent his escape; and, therefore, a motion for the debt and costs will not be sustained against him, on the ground of a voluntaryescape. Lyle v. Stephenson, 6 Call, 54.

Act of January 19, 1837, Ses. Acts 1836-7, ch. 66, p. 41.

5. §. All persons charged with a criminal offence who now stand committed to the jail of any county or corporation within this commonwealth, and all persons who may hereafter be arrested and committed to the jail of any county or corporation hereafter created, charged with a like offence, in which no good and sufficient jail has been provided, shall be committed to the jail of some adjoining county, in the mode and manner directed by the act, entitled "an act providing for the better security of persons charged with criminal offences," passed January the seventh, eighteen hundred and thirty-six; and the sheriffs and all other officers shall receive the same compensation, and be governed in all respects in relation thereto, as is required and directed by the before recited act.

Act of April 2, 1829, ch. 75, p. 46.

6. § 1. Whenever it may be proper under the provisions of the act, entitled "an act providing for the better security of persons charged with criminal offences," passed January the seventh, eighteen hundred and thirty-six, to remove any prisoner charged with a criminal offence to the jail of an adjoining county, it shall and may be lawful to remove such prisoner in the manner prescribed by the said act, to any convenient corporation jail, if any there be in the same, or an adjoining county; and whenever the court of any county or corporation shall have ordered the removal, or the rebuilding or the repairs of its jail, so that it may be necessary and proper, in the opinion of any two justices of the peace of the county, to confine prisoners charged with a criminal offence in some other jail of an adjoining county, or of any corporation in the same or an adjoining county, it shall and may be lawful to commit or remove any such prisoner to the jail of any such county or corporation, in the manner prescribed by the before recited act; and the keeper of any jail to which any prisoner or prisoners may be so removed shall be liable to the same duties and penalties for the safe keeping of such prisoners, and be entitled to the same compensation therefor, as for other prisoners.

Act of February 25, 1819-January 1, 1820. R. C. ch. 134.

7.30. If any person or persons taken or charged in execution, shall enter into bond with good and sufficient securities, under a reasonable penalty, upon condition that he, she or they shall not depart or go out of the rules or bounds of the prison, to which he, she or they be committed, (b) and that he, she or they will render his, her or their body, or bodies, to the prison, in satisfaction of such execution, at or before the expiration of one year from the date of such bond; it shall be lawful for the sheriff or other officer, in whose custody such prisoner or prisoners shall be, to permit him, her or them to go out of the prison and return at his, her or their pleasure, during one year after the date of such bond; after the expiration of which time, if the person or

501.

(b) This bond should be taken to the ut semble. Hooe v. Tebbs & ux. 1 Munf. sheriff and his successors in office. Meredith's adm'x v. Duval, 1 Munf. 76. And, should pursue the act strictly, in the condition thereof. A bond conditioned that the debtor shall keep within the prison bounds, until he shall have discharged the debt and costs, and save harmless the sheriff, was adjudged void. Syme v. Griffin, 4 H. & M. 277; and see Sullivan et al. v. Alexander et al. 19 Johns. R. 233.

If taken payable to the plaintiff, an action may be maintained on it at common law,

A sheriff is ex-officio gaoler, and liable for the misconduct of his turnkey or servant. Query, If a gaoler is regularly appointed by the sheriff, is he thereby discharged from responsibility for the acts of his gaoler? Carr, J. observed, that the inclination of his mind was, that the sheriff, notwithstanding such appointment, would be liable, as in other cases, for the acts of his deputy. Dabney v. Taliaferro, 4 Rand. 256.

Act of February 25, 1819-January 1, 1820. R. C. ch. 134.

persons so taken or charged in execution, shall not have been discharged by due course of law, [see tit. INSOLVENTS, No. 3,] and shall not have rendered his, her or their body or bodies to prison, according to the condition of such bond, the sheriff or other officer of the county or corporation, where such prisoner or prisoners were in custody, shall immediately proceed in the same manner, and the creditor at whose suit he, she or they was or were in custody, shall be entitled to the same remedies as are prescribed by law in relation to prisoners escaping and going out of the prison rules. [See tit. ESCAPES, No. 2.] And if the person or persons so charged in custody shall render his, her or their body or bodies to prison, according to the condition of such bond, or shall be taken and committed to jail on an escape warrant, after the expiration of the time during which he, she or they was or were entitled to the benefit of the rules or bounds of the prison, such prisoner or prisoners shall thereafter be closely confined in jail, and' shall not be discharged, until the debt or demand for which he, she or they was or were taken or charged in execution shall be paid, or until he, she or they shall have taken and subscribed the oath and schedule, and shall have made the delivery and transfer of his, her or their property as required by law for the discharge of insolvent debtors. From Oct. 1748, c. 12, § 21, 5 Stat. Larg. 536; 1793, c. 151, R. C.; 1807, c. 107, ed. 1808.

Act of February 26-March 1, 1819. R. C. ch. 169.

8. § 19. When any person accused of any treason, felony or other criminal offence, shall be committed to any jail, and the sheriff or jailor shall have good cause to suspect that such person will attempt to escape, such sheriff or jailor is hereby empowered and required to impress a sufficient guard, for securing such prisoner, so long as it may be necessary. For such guard so summoned, the court shall make and certify an allowance, not exceeding seventyfive cents per diem, for each man, to be paid out of the public treasury: Pro vided however, That if any sheriff or jailor shall summon any such guard when, in the opinion of the court, he had not reasonable cause therefor, or shall summon any greater number of persons to be of such guard, than shall be thought reasonable by the court, such sheriff or jailor shall be fined in a sum double the amount of the allowance made for such unnecessary guard; and it shall be the duty of the court, making such allowance, to assess such fine; the sheriff or jailor having been first served with a rule to shew cause to the contrary. Rev. 1819. [The accounts of guards employed in guarding criminals in the county and corporation jails, shall hereafter be examined and certified to the auditor by the superior courts of law; and it shall be the duty of the judge, before certifying such claims, to cause enquiry to be made into the state and condition of the jail of such county or corporation. If it shall appear to him that the guards employed, were necessary in consequence of the bad repair and insecurity of the jail, he shall direct the claims to be certified to the court of the county or corporation, to be paid by the county levy or corporation tax. [Before the judge shall thus direct, he shall make a rule on the justices of such county or corporation to shew cause against the said order; and the service of the said rule on the attorney prosecuting for the commonwealth in the said county or corporation, shall be considered as a sufficient notice to the said justices. Feb. 12, 1823, c. 30, § 12.] But, if it shall appear from particular circumstances, that such guards were necessary, and were not summoned on account of the insufficient repair of the jail, then said claims shall be certified to the auditor for payment. Feb. 19-April 1, 1822, C. 8.

Act of March 8, 1819-January 1, 1820. R. C. ch. 69.

9. § 39. Whenever, in the opinion of any two justices of the county or corporation, a guard shall be necessary for the safe-keeping of any prisoner confined in jail under a charge of any criminal offence, it shall be lawful for such justices, by warrant, under their hands and seals, to command the sheriff or jailor to summon such guard as they may deem necessary; and such guard shall be paid as other guards summoned in like cases. 1792, c. 66, R. C.

10. § 32. In all cases, where the circuit court is holden at the county courthouse, the county jail shall be used as the jail of the circuit court; the jail of the county of Henrico shall be used as the jail of the circuit court for said county; the jail within the corporation of Fredericksburg, shall be the jail of the circuit court for the county of Spottsylvania; and the jail for the corporation of Petersburg, shall be the jail of the circuit court for the county of Prince George. Ibid. [Corporation jail of Lynchburg, shall be the jail of the superior court of law for the town of Lynchburg. Jan. 26, 1823, c. 18.] 11. 33. The keepers of the jails of the aforesaid counties and corporations, shall act as jailors for the aforesaid circuit courts, respectively; shall attend them during their sessions, be amenable to their authority, and obedient to their lawful orders. They shall take into their custody, all persons committed by the orders of the circuit courts, or by any process issuing therefrom, and all persons committed, by whatever lawful authority, for trial in such courts. Ibid.

12. § 35. The prison rules and bounds assigned by the several county and corporation courts, whose jails are used for the circuit courts, shall be the rules and bounds for all prisoners, entitled to the privilege of the rules, whether committed by the authority of the circuit courts, or by any other authority. Rev. 1819.

13. § 34. 'It shall be the duty of the jailor, to furnish every prisoner confined in his jail, whether committed by the circuit or the county courts, or by other lawful authority, with wholesome and sufficient food; with sufficient fire where necessary and proper; and with cleanly and sufficient bed-covering.(a) The fee, to be allowed the jailor for keeping and so furnishing the prisoners, shall be regulated by the circuit court, from time to time, so as not to exceed forty cents per diem for each prisoner. Dec. 20, 1796, c. 213, R. C. [The maximum allowance for the support of the prisoners and criminals in jail, shall be hereafter reduced to the sum of thirty-three and one third cents per day; and the superior and inferior courts in certifying such allowances to the auditor shall be governed accordingly. Feb. 19-April 1, 1822, c. 8.] [The county and corporation courts, and circuit superior courts of law and chancery in this commonwealth, shall order such allowance to be made to their respective jailors for keeping, dieting and furnishing the prisoners confined in

(a) A sheriff, as gaoler, is bound to furnish a runaway committed to the gaol with such supplies as the season of the year may require, and he, being ex officio gaoler, is liable for the misconduct of his turnkey or servant. Dabney v. Taliaferro, 4 Rand. 256. The qualifications of the actual gaoler for the full and faithful execution of their duties, are not sufficiently attended to by the sheriffs, their employers. Ignorant and inexperienced young men, who are disposed to an idle life, are too often employed, because they can be had for small wages. 'Tis an important trust, and there are few qualified to execute it. Mr. Lynds, superintendent of the prison at Sing Sing, New

York, very justly remarks, "that he should possess equanimity, quick discernment of character, impartiality, resolution, vigilance, promptitude, temperance and, more than all, a habit of seeing much and saying little. He should always observe a uniform gravity and dignity of deportment in the presence of prisoners, calculated to inspire them with respect and confidence, and not to indulge, in the least degree, in levity, passion, or petulance."

See Sup. R. C. c. 109, § 46, p. 153, prescribing the powers and duties of the circuit superior courts over gaols, gaolers, guards and prisoners.