
    *Rose v. Shore.
    [Tuesday, May 14, 1799.]
    Prisoner — Prison Fees — Payment of. — If the debtor be able to pay his own prison fees, the Jailor cannot demand them of the creditor.
    Same — Same—Same.— [And the presumption is, that the debtor is able to pay them, until the contrary be shewn by the Jailor.]
    
      This was an action for money had and received to the plaintiff’s use, brought by Shore against Rose, in the District Court of Richmond. Plea, non assumpsit; and issue. Upon the trial of the cause, the jury found a special verdict, which stated, “That the plaintiff sued out a writ of capias ad satisfaciendum against William Claiborne, who was taken thereon, and upon the 8th of March, 1790, committed to the District jail, of which the defendant is the keeper. That, on the 13th of the same month, Claiborne gave a bond for the prison rules according to law; and, thereupon, was let out of prison. That he took a house within the prison rules; but the same was not in the possession of the Jailor, and did not form any part of the prison. That, on the 22d of March, 1790, the plaintiff executed a bond with William Fenwick his security', to the defendant; the condition of which was, that whereas Claiborne was confined in the public jail in the city of Richmond, having removed his body there, by a writ of habeas corpus, from the county of Chesterfield, where he was taken on a ca. sa. issued from the Court of Prince George county, on a judgment obtained there, by the said Shore; therefore, if Shore and Fenwick should pay the said Rose all the legal prison fees and charges for the maintenance of the said Claiborne, whilst he remained confined, the bond was to be void. That the defendant, from time to time, demanded and received of the plaintiff Is. 3d. per diem, as prison fees for maintaining the said Claiborne, from the 13th of March, 1790, to the 29th of June, 1791 which he paid over to Claiborne. That Claiborne was, during all that time, possessed of sufficient property and able to maintain himself in 541 prison, without the aid *of the said fees; and that he was not maintained by the defendant.
    The District Court gave judgment for the plaintiff; and Rose appealed to this Court.
    Duval, for the appellant.
    It does not appear that the Jailor knew the debtor was able to maintain himself; and at first sight the creditor was bound to pay the fees. R. C. [ed. 1803, c. 151,] $ 44, 45, 46. The verdict finds that the Jailor paid the fees over to the prisoner; and, they' were as necessary for his subsistence in the bounds, as if he had been confined in close jail. Besides, Shore was not compelled by any act of the Jailor, to pay the money; but, it was voluntary in him, and the Jailor being an innocent man should not suffer.
    Wickham, for the appellee.
    The verdict finds the prisoner was not maintained by the Jailor; and all the acts of Assembly, from the fee bill in the old edition of the laws down to the act of October, 1788, shew that the Jailor is only entitled to fees for actual maintenance of a debtor, unable to maintain himself. If the debtor actually lived on the maintenance afforded him by the Jailor, it would be an inference, that he was unable to maintain himself; but, it is certainly otherwise, where he gives security for the bounds and takes a house ; because, that affords a strong presumption, that he is able to maintain himself; and the verdict finds, that he had sufficient property for that purpose. That the money was paid over, makes no difference; for, still the Jailor had received it without authority; and the law did not require him to pay it over. That Shore gave a bond, is not material; because, he did not know the debtor’s situation, as well as the Jailor did; and, if the fees were illegally demanded, the bond was void.
    Marshall, in reply.
    It is not true that the Jailor cannot demand fees, unless he actually maintains the debtor. For, a man may do by another, what he may do himself; and, if he might employ' another to procure the 542 debtor’s maintenance, *he may employ the debtor himself. It can never be material whether the Jailor pays the fees to the debtor, or buys provision with them himself. But, it is said, that tne debtor should be in actual jail. This, however, is not prescribed by the act; and, in the notion of law, the prisoner is as much in custody, when he has given security for the prison bounds, as if he was in actual jail. And, there is the same reason for maintenance in the one case as in the other. The Jailor has no means of knowing the debtor’s ability; and, therefore, he and the plaintiff stand upon the same footing, in that respect. So, that in order to charge the Jailor, the verdict should, at least, have found that he knew the debtor was able to maintain himself. The Jailor innocently received and paid the fees over to the debtor; and gets nothing by' the transaction. Consequently, the plaintiff cannot recover against him in an action on the case for money' had and received to the plaintiff’s use; which is an equitable action, and cannot be sustained, unless ex aequo et bono, the defendant ought not to retain the money.
    Randolph, on the same side. The Jailor cannot tell what are the circumstances of the debtor, so well as the creditor can; because, the latter has had a previous connection with him, whereas the Jailor has not. When the fees were demanded, Shore should have answered that the debtor was able to pay them himself; but, instead of this, he pays those in arrear and gives bond for the residue : Which served to strengthen the Jailor’s delusion; and was an acknowledgment of the debtor’s inability to maintain himself. This was not ignorance of the law in the Jailor; but ignorance of fact, and that will excuse him. Besides, the public officer should be protected in a case of this kind; where the sufferings of an individual were concerned. If a suit for extortion had been brought, it would not have lain; although, the Jailor had no right to the fees: Because, the money was received under mistake, and therefore innocently.
    ^Wickham. Although an action for extortion would not lie, yet this will. Indeed, it is rather an argument in favor of the action, that a suit for extortion could not be maintained.
    Cur. adv. vult.
    
      
      Prisoner — Prison Fees — Security for Payment of.— The creditor of an insolvent prisoner, who has the liberty of the rules, is bound to give security for the ‘prison fees; but the sheriff cannot legally discharge him, unless he be actually insolvent, and being so, the plaintiff having notice thereof, refused to pay his fees, or to give bond for the payment thereof. Meredith v. Duval, 1 Munf. 76, citing, with approval, the principal case.
    
    
      
      Public Officers — Extortion of Money for Fees of Office. — The principal case is cited in Mayor of Richmond v. Judah, 5 Leigh 318, for the proposition that, if money be extorted by one holding an official station for fees of office' which are not due in law, it may be recovered back; because it is a part of the policy of the law, to discountenance the extortion of its officers, by considering as void any payment which is made to them, in compliance with their unlawful demands.
    
   ROANE, Judge.

The question in this cause turns upon the legality of the demand and receipt of the fees, which are found by the special verdict to have been paid by the appellee to the appellant.

It is certainly a general principle, running through our code of laws, that an imprisoned debtor shall himself bear the charges of his maintenance.

This principle, however, admits of exceptions. Eor instance, by the District Court law of 1788, c. 67, <¡98, [12 Stat. Larg. 756,] it is provided, that the maintenance of an insolvent debtor imprisoned by process of the District Court, shall be borne bjr the public. It is also enacted, as a general exception from the principle, that the fees of an insolvent debtor shall be paid by the creditor. But, in either case, it is incumbent on a party claiming an exemption from the- general principle, to be able to sustain it by a fair construction of the laws.

As it appears by the bond found by the verdict, that the prisoner Claiborne was imprisoned by the District Court of Richmond, on the return of a habeas corpus directed to the Jailor of Chesterfield, perhaps this case might more properly fall within the first exception above stated; and," then the charges would in no event be payable by the creditor. But, I wi]l consider it on the ground on which it was placed by the counsel.

In this view, the exception is set up under the act of 1772, c. 13, <¡ 1, [8 Stat. Larg. 527,] (since re-enacted) [c. 134, § 42, R. C. ed. 1819,] declaring, that where any person shall be committed to prison, and shall not be able to satisfy and pay his ordinary prison-fees, the Sheriff or Jailor may 544 *demand and receive of the party or parties, at whose suit such insolvent person shall be imprisoned, all such fees as shall become due, until such creditor shall agree to release such prisoner. It is clear that the word insolvent here, is not to be taken in the sense of insolvency, by having taken the oath prescribed by law; because, after that, the prisoner cannot be detained at all. But, it is equally clear, that this clause extends only to such prisoners as are unable to pay their ordinary prison-fees. And the clause in the act of 1789, providing for the case of a prisoner detained on several executions, is only intended to meet that particular case; and not to change or enlarge the exception before stated.

If, then, the provision only extends to charge a creditor, where his debtor is not able to pay the fees, ought a jury to justify a Jailor in demanding them, where the prisoner is proved to them to be able to pay the fees himself?- Or, ought a Court to exonerate the Jailor, on a special verdict finding that the prisoner was able -to pay the fees?

The arguments of the appellant’s-counsel, shewing the hardship imposed on the Jailor b3r the construction adopted by the District Court in this instance, would be properly addressed, if any where, to the Legislature. But, there may also be hardship on the other side; and, it is clear, that if the discretion now asserted on behalf of the Jailor be sustained, it ma3r operate as a repeal of the act, so far as it respects the inability of the debtor; -and, throw upon a creditor, in any case, a burthen which is only imposed on him by law, in the event of his debtor’s being unable to support himself in prison.

But, what is the hardship now complained of? It is only imposing on a public officer, who is paid for his duties, a peril of which there are a thousand analogous instances in the law; and, it is surely better to hold him to a strict responsibilit3r in this instance, than to adopt a construction which breaks down a barrier established by 545 law, and ^enables him to impose a charge, at his discretion, upon a third person, whose interest in this particular, the law has designed to protect.

The money in question, therefore, having been illegally demanded and received by the appellant, from the appellee, was so much money received to the use of the plaintiff; and, consequent^', the judgment of the District Court ought to be affirmed.

FLEMING and CARRINGTON, Judges. Both concurred, that the judgment ought to be affirmed.

LYONS, Judge. It is, indeed, a hard case, upon the Jailor; but still the law must prevail. If the Jailor had brought an action against the appellee for the fees, in order to recover, he must have averred and proved that the debtor was unable to pay them; and the principle is the same, whether he be plaintiff or defendant. The insolvency of the debtor is absolutely necessary to be shewn, in either case. The Court is, therefore, unanimously of opinion, that the judgment of the District Court should be affirmed.

Judgment affirmed.  