We decided in Saunders v. Quigg, 112 Pa. 546, that, when William Quigg surrendered himself to the warden or keeper of the Philadelphia county prison, it was a compliance with the condition of his bond, and discharged his surety, notwithstanding the prison authorities refused to detain him. In Keim v. Saunders, 120 Pa. 121, we held that the sheriff was liable for Quigg’s escape, for the reason that, under the peeuliar laws regulating the Philadelphia county prison, the sheriff was not the keeper thereof, and had no control over it. And in Saunders v. Smith, 132 Pa. 180, we held, for the reasons there given, that the inspectors of the prison were not liable for such escape. This suit was brought against Howard Perkins, the superintendent of said prison, for an escape, under the statutes of Westminster 2d, in which the plaintiff claimed to recover the amount of debt, interest, and costs in the original capias against Quigg.
The point upon which this case rests was not decided in either of the above-cited cases. We have decided there was a valid surrender as between Quigg and the plaintiff, and that the condition of the bond was complied with, and the surety discharged. We also said there was an escape, a question of fact about which there is no dispute. The question now is entirely different. It arises between the plaintiff in the writ of capias ad satisfaciendum and the superintendent of the prison, and we are called upon to say whether the surrender was sufficient to hold the latter to the peril and liability of an escape.
It appears from the undisputed evidence that on the day the Court of Common Pleas refused to discharge Quigg as an insolvent, he proceeded to the county prison with one or two friends, neither of whom was an official, and banded to an under-keeper a paper of which the following is a copy:
“ In re Insolvency of William Quigg. Common Pleas, 3. March Term, 1880, No. 213.
“ Application for discharge as an insolvent.
“ Discharge refused this day, by Judge Finletter; February 29, 1884.
*110“ The above-named William Quigg voluntarily surrenders himself in the above matter to the jail of the city and county of Philadelphia, this same day, February 29, 1884. ■
“William Quigg.”
Quigg at the same time informed the under-keeper of the facts surrounding the case. The defendant says in his testimony : “ He (Quigg) showed me a paper; I think the one in evidence is the paper he handed me; I gave him to understand that I would not receive him, as it was not an official commitment ; he asked me what was to be done, and I said he would have to go out. I declined to receive him then, and the gates were unlocked, and he went out.”
It thus appears by the uncontradicted testimony that the defendant refused to receive Quigg for the reason, and the only reason, that he had no sufficient authority to justify him in detaining him. The refusal was based, not upon a mistake of the law, which, in theory at least, is no excuse, but upon the lack of evidence that Quigg was an insolvent debtor whose discharge had been refused by the insolvent court. It is true, he was informed so by Quigg, but is the keeper of the county prison bound to receive every one who claims admission, under the penalty of being mulcted in damages to the extent of several thousand dollars ? For any legal evidence before him, Quigg might have merely desired a night’s lodging at the expense of the county. We must not lose sight of the fact that the defendant is not the sheriff; he is merely the superintendent of the prison, and is accustomed to receive inmates only upon a formal commitment, or the order of the sheriff or some other officer. He had no knowledge, and no knowledge could be imputed to him, that Quigg was an insolvent, beyond the mere statement of Quigg himself. He had no record, no writ, no paper of any kind which bore authenticity, or which, upon its face, justified Quigg’s detention. If the keeper had also been the sheriff, as is the case in many counties in the state, and formerly was so in all, there would have been some reason why such a surrender as this would make him liable for an escape. In such case, the sheriff would have in his hands the original capias upon which the insolvent was arrested, with official knowledge of his application for the benefit of the insolvent laws.
*111We have not held in either of the cases above mentioned that this defendant was liable for this escape. His case has not been before us until now. We have not before been called upon to say whether Quigg’s surrender was sufficient to hold the defendant liable. It would be a harsh ruling — -harsh beyond aii precedent — to enforce the old rule of the common law against him under the circumstances. The rule itself is a relic of the barbarism of a past age, and is not essential to, nor is it in harmony with, our present humane insolvent laws. It would be a wise act for the legislature to sweep it away. While it stands, it is our duty to enforce it in a clear case, but we must not be asked to do so in a doubtful one. I do not think it would have been applied in this case had it occurred during the darkest hours of imprisonment for debt, because the facts do not bring it within its reason.
When the learned judge below instructed the jury that Quigg’s surrender was not valid, he evidently meant it was not good as against the defendant. His language must be understood as applicable only to the case upon trial before him, not to another case, which had been passed upon by this court. Viewed in this light, his ruling was free from error. Nor does it harm the plaintiff; he has merely lost what he never had.
Judgment affirmed.
Mr. Justice Clark and Mr. Justice Williams noted their dissent.On March 9, 1891, a motion for a re-argument was refused.