(after stating the facts). It is contended for petitioner herein that the judgment of the circuit court is void, it being without jurisdiction to render it, and by the respondent Jones, (1) that he was never committed to jail and not legally placed in the custody of the county contractor; and, (2) that the failure of the contractor to comply with the contract authorized the court to make the judgment remanding him to the custody of the jailer. It is conceded that the contract for the hire of the convicts was duly and regularly made by the county court under the authority of section 1080 of Kirby’s Digest, as amended by act 68 of the Acts of the Legislature of the 1909 session, which reads as follows:
“The county court or the judge thereof in vacation, is authorized and impowered to make a contract with some responsible person or persons for the maintenance, safe keeping and working of prisoners committed to the county jail except prisoners awaiting trial. He may make such contract as he may deem for the best interest of the county. For the purpose of making such contract to effectuate the provisions of this act, the said court or judge is invested with plenary power; provided no contract shall be made with any person or persons living outside the county court where said contract is made, unless he or they shall name an agent in county where said contract is made on whom service may be had, and said party or parties and their bondsmen shall be liable for damages in the county where said contract was made for any breach or violation of contract, and it is hereby made the duty of the county judge making any contract for the hire of any county prisoners, when said contract has been violated, to cause suit to be brought in the circuit court of the county where the contract was made, which is hereby declared to be the court of competent jurisdiction. ”
It is contended that “only prisoners committed to the county jail, except prisoners awaiting trial, ” may be legally delivered to the contractor under the law; and since judgments for the fines against said Eunice Jones did not direct that in default of their payment the defendant be imprisoned until the fine and costs was paid, that he had never been committed to jail within the meaning of the law and the contract made thereunder.
This contention is without merit. The law requires that where the punishment of an offense is by a fine “the judgment shall direct that the defendant be imprisoned until the fine and costs are paid,” etc. (Kirby’s Digest, §2443), and such direction should have been included in said judgments against Jones, in default of the payment of the fines levied. Its omission, however, did not render the judgment void, and was a clerical misprision which could have been corrected, even after the expiration of the term. Ex parte Brady, 70 Ark. 382; Kirby’s Digest, § 431, subdivision 3.
The defendant was in court at the time of the rendition of the judgments, and it was the duty of the sheriff to retain him in custody until the fine and costs were paid. Griffin v. State, 37 Ark. 442.
The court could not discharge him for any informality, insufficiency or irregularity of the commitment. Section 3867, Kirby’s Digest.
When it appeared that the petitioner was held in custody by the final judgment of the circuit court, a court of competent criminal jurisdiction, and under a contract legally made for the hire of such prisoners, the court should have remanded him to the custody of the contractor from whom he was taken. The county court had plenary power to make the contract for the hire of the county convicts and exclusive original jurisdiction to cancel such contract upon the failure of the contractor to comply with the contract and the law relating to the treatment of convicts delivered to him thereunder. Act 63, Acts 1909, p. 166; Kirby’s Digest, § § 1094-1098. Said act gives the circuit court jurisdiction only of suits brought by the county judge for the violation of the contract, and it was without authority to declare the contract void in effect, at the suit of one of the convicts, legally confined and in the custody of such contractor, for his failure to treat said convict as required by law, and remand him to the custody of the jailer. Its judgment is void, and will be quashed.