case the king against morgan Edward Esq high sheriff of Montgomery a  information pray against the sheriff of Montgomery for refuse after notice to  keep his prisoner in the new gaol but the information be refuse on motion to  make absolute a rule for a information against the defendant for a  misdemeanour in not keep his prisoner in a new gaol build in the town of  Montgomery though he have notice from the justice that it be fit and for keep  the prisoner commit to his custody in a house be hire for that purpose modern  er p sir Thomas Abney Mr solicitor general and Mr Hallings in support of the  information insist that the statute will have be well pursue by the justice  that the grand jury of session and at assize be empower thereby to make  presentment relate to gaol c and that the statute of Henry the eight have make  Montgomery a county town that this new gaol have be build a year and a half  that by the commonlaw felon be to be keep in the county gaol where there be  one in the common county gaol by the statute Henry c which accord to my Lord  coke be but declarative of the commonlaw modern that by the statute will felon  shall not be imprison but in the common county gaol and Geo c have make that  perpetual and have enlarge the power of the justice that the key of this new  gaol have be proper tender to the sheriff by order of the justice that the  only way in which they can proceed in this case be by application to this  court that they bad act only conformable to Act of parliament that sheriff be  bind by law to take notice of common county gaol the justice say that this  gaol be fit though those who be not judge may say otherwise it be swear that  the place in which the sheriff keep the prisoner be a improper one and justice  can only commit to the public county gaol to which it be answer by Hayward  sergeant Wilbraham and tailor that the defendant deny by affidavit that the  house be hire or any rend pay for it that the statute of will be that in case  the common gaol be insufficient upon a presentment by the grand jury there  arise a jurisdiction to the justice here they have not produce any presentment  order c to prove a proper jurisdiction neither do they so much as show that  the old gaol be not sufficient or that the new one be a public county gaol  that by the Edward c sheriff have the custody of gaol and be answerable for  their prisoner may keep debtor where they please that it do not appear what  authority the person have who tender the key to the defendant that the place  where the defendant now keep his prisoner be a usual and commodious place that  this new gaol do not appear to be sufficient to bold and keep the prisoner but  that it be so damp in the plaster c that it will have be murder to have remove  they to it that the water come into this due place and the wall of it be such  that the prisoner may easy escape and so the sheriff may have be censure as  other have be if he have remove they thither and that this be air improper  application because the court will not try a right in a criminal way lee chief  justice there be no Act of parliament which appoint commit to the county gaol  but only to the common gaol by the will power be give to justice relate to  gaol upon presentment it do not appear to be a gaol within this statute for  the presentment be not before we and though some affidavit say there be no  common gaol yet it appear there be one use as the common gaol of the county  and you must therefore show this to be such a gaol as the sheriff be oblige to  carry felon to in which you have fail if you have pursue the statute strict to  be sure the sheriff must have by law carry his prisoner to it and their he be  within the jurisdiction and order of the justice but upon the whole I do not  think this such a case as we ought to proceed upon by information page justice  of the same opinion quaere modern probin justice the rule ought to be  discharge there ought to have be a presentment there be no gaol or if there be  it be inconvenient sixty year use of a house for a prison as in this case be  sufficient to nominate it a county gaol the court of grand session have a  jurisdiction application may be make there which be a further reason for  discharge this rule chapel justice of the same opinion