¶1One Joe Polk had been sentenced to be hanged by the Howard Circuit Court, and pending an appeal to this court, had been placed by the sheriff in the Hempstead County jail for safe keeping, the jail of Howard being insecure. Thq prisoner being taken violently sick, the appellant, a practicing physician, was called in by the sheriff of Hempstead, and visited, prescribed for and furnished him medicines until his death, a period of three months.
¶2The doctor exhibited his bill against Howard County for $356, and the county court made an allowance of $200, rejecting the remainder of the claim as excessive. The claimant appealed to the Circuit Court, and there, under the directions of the court, the jury returned a verdict for the defendant.
¶3The bill of particulars was duly verified, as required by section 1412 of Mansfield’s Digest, in the case of claims against counties, and the proof was that the services were rendered and the medicines furnished under the circumstances above stated, and that the prices charged were such as were customary in the town where the prisoner was confined; that the prisoner had no property out of which the bill, or any part of it, could be made.
¶4The charge of the court proceeds upon the theory that the statute does not expressly make counties liable for medical attention to prisoners either before or after conviction; and that, if there is any implied liability, it does not arise where, as in this ease, the prisoner was taken for safe keeping outside of his judicial circuit.
¶5Section 3890 of Mansfield’s Digest enacts that the sheriff' may, where there is no jail in his county, or the jail is insufficient, commit any person in his custody to the nearest jail in some other county in the same.circuit. Now Hemp-stead and Howard, although adjacent counties, are in different circuits. But the language of the statute is directory merely. Possibly the'jailor of Hempstead was under no legal obligation to receive this prisoner. But, certainly, if he did take charge of him at the request of the sheriff of Howard, the latter county would be responsible to the same extent as if the commitment had been to some other jail in the same circuit.
¶6The expenses of imprisoning a convict sentenced to suffer death, and all expenses attending the execution of the sentence, are placed on the footing of costs; that is, they are to be paid out of the estate of the convict; but if he had no estate, then by the county. (Compare secs. 3884, 2338, 2342 of Mansfield’s Digest.) This includes, of course, the cost of feeding him until the day of execution arrives. And our law would be singularly deficient in humanity if it did not .also include the attendance of a physician when necessary.
¶7The Circuit Court erred in its directions to the jury and in denying the motion for a new trial. And for these errors its judgment is reversed and the cause remanded for further proceedings.