The opinion of the court Avas delivered by

As it appears that the criminal Avho> escaped was not in the custody of the defendant, the latter could not be guilty of the crime of which he has been convicted. The offence of suffering by negligence, a prisoner to escape, is one which can be committed only by the person in whose charge the law places the criminal. This rule is reasonable, for such person alone has the control of the imprisonment, and can thus take the measures necessary to prevent the escape of the prisoner. Going, then, upon the facts as stated in the case) it is clear that on the occasion in question, the sheriff and the keeper of the jail were each guilty of a negligent escape. The prisoner was in their custody, and they are responsible in law for the negligence of the defendant, who Avas their agent. It is also equally certain that such agent could not commit this offence. The books do not leave this rule of the law in any uncertainty. In 1 Puss, on Crimes, p. 420, the doctrine is stated in these words: “ But it seems that an indictment for a negligent escape will only lie against those officers upon Avhom the law casts the obligation of safe custody and Avill not lie against the mere servants of such officer.” And in the second volume of Burn’s Justice, edited by Chitty, page 6, two cases, which are in point, are thus referred to : “ T. Hill, a yeoman wardour of the tower, and Dod, the gentleman gaoler there, were indicted for the negligent escape of Colonel Parker, committed to the tower for high treason. Lord Lucas, the constable of the fewer, had committed the colonel to the care of the defendants, to be kept in the house of the defendant Hill. The judges present (O. B., January, 1694,) were of opinion that the defendants Avere not such officers as the law took notice of, and, therefore, could not be guilty of a negligent escape. It was merely a breach of trust to Lord *423Lucas, their master. Upon the same principle, T. Stick, a wardour of the tower, who was indicted at the same sessions for the negligent escape of Lord Clancarty, was acquitted.”

For a recognition of the same principle, see, also, Bishop on Crim. L., vol. II, § 922.

Let the Oyer, &c., be advised to grant a new trial.