delivered the opinion of the court:
The only question made in this case is whether the contract on which the appellee recovered in the circuit court, or the consideration on which it is founded, is illegal, against public policy, and, therefore, not enforceable by law.
Trundle was confined in the jail of Kenton county from November, 1853, to some time in the month of April following. He was sick during this whole period, requiring the regular and constant services of a physician, and extraordinary attention and services from the jailer, who it appears was a blacksmith. It is proved that the jailer abandoned his work at the request of the prisoner, who promised him, that if he would quit his trade, and give his time and attention exclusively to him (Trundle) he *400would give him twice as much as he could make otherwise; that the appellee agreed to do so, and faithfully performed his part of the agreement. That after Trundle’s discharge from custody, he repeatedly acknowledged his indebtedness for these services and benefits, and promised to pay the claim as soon as he could raise the means by the sale of some stock. Having died shortly afterwards, this suit was brought against his administrator upon the contract as stated.
1. A promise to a jailer, by a prisoner, to pay for services and attention to his prisoner, which 4he law made it his duty to perform, is not obligatory.The law imposes upon the jailer the general duty of supplying the prisoners in his custody with wholesome food, fire, comfortable beds, and, in ease of sickness, with proper medical aid. Of coui’se any agreement or promise by a prisoner to pay for accommodations and services such as these would be nugatory, upon the obvious ground of want of consideration. This duty of the jailer, and the corresponding right of his prisoner, is embodied in the instructions given by the court to the jury on the trial. Those instructions are as follows;
1. “If the jury find, from the evidence, that Trundle was sick in jail, and that the jailer rendered him attentions which he was not required to do by virtue of his office of jailer, and that Trundle promised to pay for such extra services after he was released from jail, then they should find for the plaintiff the value of such etxra services as they should find were rendered by the jailer.”
2. “The jailer was required, by virtue of his office, to furnish the prisoner with food and fire, and to keep his room clean, and to go for a physician, when one was necessary, and for these services he was not entitled to any pay from the prisoner.”
It seems to us that this statement of the general duty of the jailer was sufficiently comprehensive, and could not have misled the jury, as contended, because it failed to specify, in. detail, all the services and supplies to which the prisoner was entitled as matter of right.
2. The promise of a prisoner confined in jail, to pay the jailer for extraordinary attention and services in his sickness, which the law did not make it the duty of the jailer to perform, is binding, and not against publio policy.It is conceded by the counsel for the appellant that no objection can be made to the legality of this contract, based upon any undue influence which might be presumable from the relations the parties sustained towards each other, such ground of objection being removed by the subsequent promise of the prisoner made after his release. But it is urged that the subsequent promise can give no validity to a contract the enforcement of which is subversive of public policy, and inconsistent with the rights and interests of society, and that this doctrine was settled in the case of Miller vs. Porter, 8 B. Monroe, 282.
That was a suit by Miller, the owner of a slave wrhich had been placed in the custody of the jailer for safe keeping, against Porter, the jailer, for allowing the slave to escape. Porter had agreed, for a stipulated reward, to receive and keep the slave in the public jail for the owner, and it was held that on such a contract neither party could maintain an action; that the jail is public property, provided for public uses, which are defined by law; that the jailer has no right to convert the building into a receptacle for slaves at the request of their owners, and from mere motives of private gain, at the hazard of the public property placed under his control, and of the comfort and health and safe-keeping of the prisoners lawfully committed to his custody; that such contracts are against law and public policy, involving an obvious breach of official duty, and therefore cannot be enlorced.
This reasoning, and these principles, are no doubt sound, but they have no sort of application to the case under consideration. The two cases are unlike in every essential particular. Here, it cannot be said that the jail was converted to the private uses of the jailer, for his private emolument, or that the safety of the building was endangered, or that the comfort and health and safe-keeping of other prisoners was, or could reasonably be presumed to be, impaired. The prisoner was lawfully in custody of *402the jailer, fell sick and continued sick throughout the entire winter and spring. In that condition he needed, or thought he needed, attentions and accommodations and services which he knew the jailer was not bound to furnish or- render, and which he therefore promised the latter to pay for. The jailer, impelled no doubt as much by a sense of humanity, as by any motive of personal gain, quit his trade and business, and devoted his time and attention to the constant demands of his prisoner. It seems to us that there is nothing illegal in all this, and nothing subversive of public policy, or inconsistent with the public interests ; but that, on the contrary, such services and attentions, rendered under such circumstances, formed not only a legal but most meritorious consideration, for the promise afterwards made to pay for them.
But it is insisted that a jailer may abuse his powers, and violate his duties, by making contracts with prisoners under his control, for extra compensation for luxurious fare and extra accommodation, and that the judicial approval and enforcement of such contracts would hold out to such officers very strong temptations to commit frauds and breaches of official duty.
It is a sufficient answer to this and other similar suggestions, to say that no such contract is sought to be enforced here, and that no such state of case is presented by the proof. Such official misconduct would subject the officer to immediate suspension by the county court under an express power conferred by the Revised Statutes, and this penalty it may be presumed will in general be sufficient to restrain the jailer and protect prisoners and all others against official delinquencies of this kind. The whole argument, it seems to us, amounts to but little more than this: that the right of the appellee to recover in this action should not be allowed, because the same right may be abused and prostituted by others similarly situated, and thus become the instrument of oppres*403siou and fraud — an argument we need not undertake to refute.
In the case of McGill’s administrator vs. Burnett, 7 J. J. Marshall, 640, the promise was to pay $100 in consideration of services to be rendered by Burnett in procuring the remission of a forfeiture. This agreement was declared illegal, upon the ground that it was an unwarrantable interference with the administration of justice, and therefore against public policy. And the numerous other authorities cited by the appellant assert the same principle — that no recovery can be had upon a promise based upon an illegal consideration. No case has been referred to, however, and none, we imagine, can be found, in which the consideration relied upon in this action, has been decided to be illegal, or against either public policy or good morals.
The judgment is affirmed.