#### ELIPHALET VEAL vs. WILLIAM C. FLAKE.

Where a man has been arrested under a capias ad satisfaciendum, and has given bond for his appearance at Court; where an issue of fraud has been made up; where the issue has been continued from term to term ;■ where his sureties have from time to time surrendered him ; where the issue has been decided against him and he has been committed to prison in all these cases, at the instance of the creditor, Held,, that, under the Act, Kev. St. eh- 58, sec. 6, the creditor is responsible to the jailor for his fees or allowance for the food, furnished to the prisoner, during the whole time he was confined in jail.

The cases of Wright v. Roberts, 6 Ire. 120, and State v. Ellison, 9 Ire. 274, cited and approved.

• Appeal from the Superior Court of Law of Anson County, at the Fall Term 1849, his Honor Judge Dick presiding.

This was an action of assumpsit, commenced by warrant before a justice of the peace for Anson County, and *418brought, by successive appeals to the County Court, and from thence to the Superior Court, to recover from the defendant an amount of jail fees alleged-to be due the plaintiff, for feeding one John M. Williams, while in his custody as jailor of said County at the suit of the defendant for debt.

The evidence was, that, the defendant had caused the said John-M. Williams to be arrested under a capias ad satisfaciendum, dated May the 25th IS44, for a debt due by the said Williams to the said defendant, and that the said Williams gave a bond for his appearance at the July term 1844 of Anson County Court, to take the benefit of the act for the relief of honest debtors ; and at the said July term 1844 an issue of fraud was made up, and continued from term to term until January term 1846, when the said Williams having appeared, he was surrendered by his sureties, and on the prayer of Flake was ordered into the custody of the sheriff, who committed him to piison, where he remained five days, and then gave a new bond for his appearance at April term, to which the trial of the issue had been continued — that at April term 1846, the said Williams again made his appearance, and was again surrendered by his sureties, and was again prayed and ordered into custody and again committed to prison, where he remained five days, and, the trial of the issue being again continued, he gave a new bond for his appearance at July term 1846 — that on the 1st day of. June his sureties surrendered him to the sheriff, who committed him to prison, where he remained forty-four days until the trial of the issue of fraud at July term 1846, when, being convicted of fraud, he was committed to prison, until he should make a full and fair disclosure ; the prisoner having remained there four days under the said order, the plaintiff demanded of the defendant his fees up to that time incurred, alleging that the said Williams was unable to pay them himself, which it *419was admitted was the fact, but the defendant refused to pay them or in any other way to satisfy the plaintiff. Whereupon the proceedings were instituted against him by warrant, as before stated. The defendant objected on the trial to the plaintiff’s recovery, upon the ground that the only pretence for making the defendant liable was the provisions of the 6th section of the 58th chapter of the Revised Statutes, and that the said Williams, at the times the several claims of the plaintiff accrued, was not “actually confined within the walls of the prison by reason of mesne process for debt, capias ad satisfaciendum, or by surrender of bail after judgment.”

The Gourt being of opinion that the plaintiff’s case was within the provisions of the act, a verdict and judg¿ ment were rendered accordingly ; and, a rule for a new trial for misdirection of the Judge on the point above stated being discharged, the defendant appealed to the Supreme Court.

Strange, for the plaintiff.

No counsel for the. defendant.

Nash, J.

The plaintiff’s action is founded upon the 6th sec. of the 58th- ch. of the Revised Statutes. Two questions are presented to the consideration of the Court. The first is, was Williams, the debtor of the defendant, Flake, in actual imprisonment by reason of mesne process for debt, capias ad satisfaciendum, or surrender by bail, after judgment. A capias ad satisfaciendum had issued at the instance of the defendant, Flake, under whiclVWilliams had given bond for his appearance at Court, agreeably to the provisions of the Statute. He duly made his appearance, and an issue of fraud being made up, the cause was continued. At the term when the issue was to be tried, the sureties of Williams surrendered him, and,on the motion of the plaintiff in that action, the defen*420dant, Flake, he was ordered by the Court into the custody of the sheriff, who committed him to jail. This is not a new question here. In the case of Wright v. Roberts, 6th Ire. 120, it was decided that the committitur to the sheriff was in execution, and could not be in any other way. The debtor had been arrested on a ca. sa. and discharged out of custody upon giving bond, and upon a surrender by his sureties, and on the prayer of the creditor, was ordered into custody. The State v. Ellison, 9th Ire. 274, is to the same effect. The Court then is of opinion that Williams, the debtor, was in arda custodia, by reason of the ca. stt.,upon which he was arrested.

The second question is, is the creditor at whose instance a debtor is imprisoned, bound to support him, while in ja.il? By the common law an imprisoned debtor was obliged to support himself, and, if unable to do so, was dependent upon the humanity of the jailer or of others. The Act of 1773, ch. 100, commonly called the forty shilling act, does not alter the common law in this particular, but limits the time of his confinement to the first twenty days, when, by pursuing its provisions, he may entitle himself to a discharge. So far as the question now before us is concerned, the law remained unaltered down to 1821. In that year an act was passed, by which it was made the duty of the jailer to furnish the prisoner with food for twenty days ; “and he may, if the prisoner be unable to discharge it, recover the same of the creditor at whose instance such prisoner is confined,” and limits the obligation upon the sheriff to furnish food, and of the creditor to pay for them to that time. In 1836, the Legislature passed the act, whose provisions we are considering. It is manifest, that the Legislature intended substantially to change the law upon this subject. The liability of the debtor to support himself, for the first twenty days-of his confinement, is still continued, if he is able to do so; but jf he is not, the burthen wras not to be thrown upon the *421jailer, nor upon the charitable, but upon the creditor, for whose benefit he is confined. By this act the creditor is bound, not only for the first twenty days, but for the whole time the debtor is confined . at his instance. The act makes it imperative on the jailer to furnish his prisoners with proper food, if they require it, “and may, if the prisoner be unable to discharge the claim for them, recover the same from the party at whose instance such debtor was confined in jail; and, when the prisoner shall have remained in jail for the space of twenty days, it shall be lawful and sufficient, for the sheriff or jailer to give notice thereof to the plaintiff, &c., and to demand security of him, for the prison fees, that may arise after the expiration of twenty days ; and if he shall fail to give such security, then to discharge such debtor out of custody.” For the first twenty days, the sheriff is compelled to rely upon the creditor, as his surety for the payment of the food furnished. But after that time, it is optional with him, whether he will or not. The debtor may be unable and the creditor not less so. To render himself secure the jailer is at liberty to call upon the creditor to give him additional security. Whether the creditor will do so or not, is at his own pleasure. But he nevertheless remains, under the act, liable for the food furnished to the creditor. It was not the intention of the act, that the prisoner, if unable to support himself, should be maintained by the jailer or the public, but by his creditor. He was not to starve. We concur with his Honor, that the easels within the provisions of the 6th section of the act of 1836.

Ruirisr, C. J.

Upon the words of the Revised Statute, the' action is maintainable ; and it will appear perfectly plain to one, who traces the progress of our Statute law, upon this subject, to its present state.

. Originally an imprisoned debtor could no more eall on the jailer or creditor for food than for clothing. The act *422of 1773 left the law unaltered, except that in the 9th section it provided, that, if a debtor, not able to pay his prison fees, should after the expiration of twenty days be discharged by the creditors, the jailer might recover his fees from the creditor. Ire. Rev. 185. Turrentine v. Murphy, 1 Mur. 180. Then, in 1821, it was enacted, that the jailer should furnish necessarj' food to á debtor in prison, if required ; and it entitled the jailer to charge therefor the legal fees for keeping prisoners, and, if the prisoners should be unable to pay them, to recover them trom the creditor — with a proviso, however, that the jailer should not be obliged to furnish the food, nor allowed to recover for it, from the creditor, for a longer time than twenty days. Those acts are plainly expressed and rest upon a just principle. If the creditor choose to discharge the debtor, the jailer cannot detain him in order to coerce payment for the food supplied to him. Therefore it was right the creditor should be required to make the debt good, if it could not be got from the debtor, because he was not “an insolvent person.” So, the second act very properly required the creditor to provide reasonable food for his imprisoned insolvent debtor, rather than he should go without, or the burden of supplying it should fall on the jailer or other charitable, persons. But it was, then obviously deemed not right to extend that new privilege of the debtor to a longer term, than that for which the law deprived him of the other privilege of a discharge upon his oath of insolvency. For, if he was insolvent, it was his fault not to take the oath as soon as he was allowed to do it, and he could have no right under such circumstances to refuse to take the oath, in order that he might be maintained in jail at his creditor’s charge. But if, in fact, he was not insolvent, and for that reason could not take the oath and entitle himself to his discharge, then he ought to be maintained out of his own means, and not by his keeper or creditor. Hence, the act fixed *423upon twenty days as that, to which the obligation of the jailer and creditor to find and pay for the debtor’s food should be limited : because that was the period, at which, if he would, the debtor might establish his insolvency by his oath and be discharged. The next step was to pass the act of 1836, ch. 58, sec. 6, by which it is enacted, as in 1821, that the jailer shall furnish the debtor with food, should he require it, and that he may, if the prisoner bo unable to pay the fees therefor, recover them from the creditor.' Then, in lieu of the proviso, comes this further enactment: "and when the debtor shall have remained in jail for the space of twenty days, it shall be lawful for the jailer to give notice thereof to the plaintiff, his agent, or attorney, and demand security from him for the prison fees, that may arise after the expiration of twenty days, and, if he shall fail to give such security, then to discharge such debtor out of custody.” The act thus plainly imposes a positive’injunction on the'jailer to maintain the debtor indefinitely, or so long as he is kept in jail, and makes the creditor liable therefor from the beginning to the ending of the imprisonment, although the debtor will not take the oath of insolvency. Those affirmative provisions are subjected to but a single qualification, and that makes the matter stronger against the creditor; which is, that the jailer shall not be obliged to trust the creditor alone for the fees accruing after the first twenty days, but may require security for them, and, if the creditor should not give it upon request, the jailor may let the prisoner at large. The liability of the creditor is, therefore, absolute under all circumstances, provided only, the debtor be found not to be able to pay the fees; and, besides, the creditor must before hand secure the payment, upon pain, on his inability or omission to do so, of having his debtor turned out of prison. That seems to be the clear sense of the statute. It is true, it may put groat hardships on creditors, as it allows the debtor to *424live in jail, as long as he chooses, at the expense of his creditor, or enforces his creditor to agree to his discharge without bringing him to his oath, and thereby may enable a dishonest debtor to conceal and retain property. But those are consequences for the attention of the Legislature ; upon consideration of which the statute may be modified. They cannot be regarded by the Court, so as, by construction', to control the plain language in which the act is now expressed.

Pbr Curiam.

Judgment affirmed.'