Opinion of the court delivered by
McGirk J.Mr. Davis, the circuit attorney, for the county court, alleges that the answer of the county court- is entirely sufficient to enable the county to avoid the payment of the account. Mr. Ranney for Logan, contends that it was ^ duty of the county (and that it is the duty of every county in the State,) to provide a good and sufficient jail, ^old all prisoners that may be lawfully committed to nomatter whether from the county or from another-county. And that whenever it becomes necessary to ■ §uar<^ to keep a'prisoner, it is the duty of.the county where such guard is employed,- to pay the guard; and that because such county ought by law to have a sufficien t to keep every prisoner without -guard. The answer to this seems to be, that in extraordinary cases, sheriff may by the advice of two justices of the peace, employ a guard; ahd that very few jails ever were can be sufficient of themselves, to guard prisoners from external force of out of door friends. But it is insisted *436that, there is nothing on the record which shews that the prisoner was sent.from any other county, to the jail of Perry county for safe keeping, or on a change of venue. We are satisfied that the county court in their second reason in their answer to the rule, intend to affirimand do affirm, that the prisoner was not, a prisoner of and belonging to Perry county, but 'was sent to, that jail from another county; for what reason he was sent, whether for safekeeping or on a change of venue, does not appear.
The fact then that the prisoner belonged to another county, is sufficient to discharge the county of Perry. The court in their answer, cite and rely on the 16th section of the revised code of 1825, respecting jails and jailors, p. 415, which says that in all cases where a person is committed from another county, for a criminal offence under this act, such county, or the prisoner or the State, shall pay the expenses in the same manner as if the commitment had been in the county where the offence was committed; and in civil suits, the plaintiff or defendant shall pay the costs &c. It is not disputed that the commitment was under this act: It would be in our opinion, exceedingly unjust, to fix the costs of the guard on the county of Perry. Whether the State or some other county may be liable for these costs, it is not necessary to consider; as to who is liable, the- law appears to be clear enough. Judgment reversed.