Opinion,
Mr. Justice Paxson:It is among the admitted facts of this case, that one William Quigg, was in March, 1883, in the custody of the defendant below, at that time high sheriff of the county of Philadelphia, upon a writ of capias ad satisfaciendum issued by Oscar P. Saunders and wife ; that he subsequently made application for the benefit of the insolvent laws of the state, gave bond in conformity with law, was discharged from the custody of said sheriff, who made return of that fact to the writ; that upon the hearing in the insolvent court his discharge was refused; that on the same day he went to the Philadelphia county prison and surrendered himself to the keeper thereof, which surrender the warden refused to accept, and permitted, or rather directed him to leave, which he did. This suit was brought against the defendant as for an escape, with the result of a verdict for the plaintiff of $2,338.85 upon which the court below entered judgment.
Saunders v. Quigg, 112 Pa. 546, was a suit upon the bond given by Quigg when he applied for the benefit of the insolvent laws, and we held that Quigg’s surrender at the county jail was a full compliance with the bond, and his sureties were discharged. The only question now is, whether there was an escape for which the sheriff was liable.
The sheriff returned the writ of capias ad satisfaciendum as follows: “C. C. And the defendant discharged on entering bail in the office of the prothonotary of the Court of Common Pleas for the benefit of the insolvent laws.” This writ when so returned was a dead writ and the sheriff had no further control over the person of Quigg; he had no process in his hands at any time thereafter by which he could have detained him for a single instant. The surrender of the debtor at the jail is voluntary in ease of his sureties, and no one can compel bim to do so unless it be the latter. Even the court cannot commit him except for fraud. When Quigg’s discharge was refused by the Common Pleas, the condition of his bond was “that he shall surrender himself to the jail of the said county.” Hence the alleged surrender to a deputy sheriff in court was a *129nullity; it did not fulfil the condition of his bond; it was not accepted by the sheriff, and goes for nothing. Had the sheriff accepted such surrender, the case might have been different. The fact is, that Quigg surrendered himself at the jail for the reason, and the only reason, that the sheriff refused to accept his surrender.
That there was an escape was not disputed. But was the sheriff liable therefor ? There is no doubt that an escape, according to the common law since the day of Rolle’s Abridgment, has uniformly fixed the jailor, who can avail himself of nothing as matter of defence but an act of God or the common enemy: Green v. Hern, 2 P. & W. 167. There are cases not only in England but in this state where the sheriff has been held liable for the escape of a prisoner confined for debt in the county jail, and there is no doubt of such liability where the sheriff is the actual keeper of the jail, or controls it by means of a deputy appointed by him. Such is the case in nearly all the counties in this state. This rule is sufficiently technical and severe where the sheriff is the jailor; to apply it to cases where he has no actual control of the jail would be unjust and unreasonable. Where such officer has been held liable for an escape he has been held qua jailor not qua sheriff. It is to the common jail that the insolvent surrenders; it is the keeper of that jail who is liable for an escape.
It is manifest from an examination of the acts of 30th March, 1831, P. L. 228, and 14th April, 1835, P. L. 232, that the sheriff is not the keeper or jailor of the Philadelphia County Prison. Nor has he any control of it. The acts referred to place it in the care of a board of inspectors; in the language of the first section of the act of 1835, it “ shall be managed by a board of inspectors ; ” and by § 2, the inspectors shall annually appoint a superintendent, a matron for the female department, a physician for the institution; the inspectors shall fix the salaries of the keepers and all other persons employed there, and make such rules and regulations for the internal government of the prison as may not be inconsistent with the principles of separate confinement. By § 4, the superintendent, under the advice and direction of the board, shall appoint the keepers and the necessary servants, and dismiss them whenever he thinks proper. By § 6 the keepers shall obey all *130legal orders given by the superintendent, and all rules established by the board of inspectors, etc. etc. In all these and many other matters specified in the acts referred to, the sheriff is wholly ignored; he cannot appoint the superintendent, an inspector, a keeper, or even a servant. He does not control the prison either personally or by deputy.
■ It was held, however, in Commonwealth v. Christopher, 3 Gr. 375, that, notwithstanding the acts of 1831 and 1835, the sheriff of Philadelphia has the custody of the debtors’ apartment and the appointment of its keeper. This case was decided in 1856. The act of February 14,1867, P. L. 196, provides that: “ The inspectors of the Philadelphia County Prison are hereby authorized to make such alterations in the building known as the debtors’ apartment, as in their judgment may be required for the purpose, management, or discipline of the said .prison ; and they are hereby authorized to provide and furnish apartments, or an apartment, for the uses and purposes for which the debtors’ apartment is by law now appropriated; and from and after the first day of December next, one thousand eight hundred and sixty-seven, the said inspectors shall appoint the keeper of said apartment, if in their judgment a keeper shall be required.”
The object of this act is plain. The separate budding known as the debtors’ apartment, owing to the increased humanity of our laws, became of little use for the confinement of unfortunate debtors; hence a small space therein, “ apartments, or an apartment,” for the use of insolvents was all that was thought to be necessary; the inspectors were authorized to utilize the remainder for ordinary prison purposes, and the • control of the whole thereof was given to them, even to the appointment of a keeper should one be necessary. This swept away the last vestige of the control of the high sheriff of Philadelphia over the county prison. The only reason why a sheriff was ever held responsible for the escape of a debtor from a county prison was that he was the keeper of such prison; cessante ratione legis eessat ipsa lex. It is possible that some one was responsible for this escape; we do not say who is so responsible; we only say that the sheriff is not.
Judgment reversed.