
    
      M. Furth vs. David Deloach.
    
    1. Where, in an action for gaol fees, the insolvency of the prisoner was fully proved, and there was further proof that he (the prisoner) was discharged with his own consent, on certain terms agreed on by him and the attorney of the plaintiff, who was present, and assented to the discharge, the gaolor creating no obstacle, nor giving notice at the time that he looked to the defendant for the gaol fees, it was held, that as the prisoner was discharged by an arrangement to which the defendant was a party, the latter clause of the Act of 1839 did not apply, (p. 48, sec. 30.)
    
      Before Evans, J. Beaufort, Fall Term, 1843.
    This was an action by the plaintiff, against the defendant, to recover the plaintiff’s fees, as gaoler, for maintaining in gaol one Redden C. Deloach. It appeared from the evidence, that the defendant sued out a bail writ against R. C. Deloach. After judgment, a ca. sa. was issued and returned non est inventus. He was afterwards surrendered by his bail, and remained in gaol some time, when he was discharged, with his own consent, on certain terms agreed on by him and the attorney of the plaintiff in that case, who was present and assenting to the discharge. Redden C. Deloach, before his discharge, had applied for the benefit of the bankrupt Act. His application was still under consideration in the federal court. It was proved that R. C. Deloach was greatly indebted. There was a list of unsatisfied judgments against him, amounting to eight or ten thousand dollars. The sheriff said “ he had sold him out. He had no property that hé could find, except what was claimed as included in his wife’s marriage settlement, which he had declined to sell, without indemnity.” R. C. Deloach moved to Barnwell, where he was living on a tract of land purchased by and owned by his mother-in-law, Mrs. Patterson. There was no doubt he was utterly insolvent, although it was proved he had in his possession a mule and two or three horses, which, so far as appeared, was his own property. At the time of his discharge, the plaintiff, Furth, did not create any obstacle, nor did he give notice to the defendant, D. Deloach, that he looked to him for the gaol fees.
    
      When Redden C. Deloach was surrendered by his bail, he was then in gaol, by virtue of the original arrest, at the suit of the plaintiff, D. Deloach. By the Act of 1839, if the defendant has no goods or chattels, lands or tenements, to pay his gaol fees, the person who imprisons him shall be liable. In this case, the court thought the insolvency fully made out. The mule and horses in his possession, even if they belonged to him, would not pay a tenth part of the executions against him; and as the imprisonment was clearly the act of the defendant, the case came within the provisions of the Act of 1839. The decree was for the plaintiff.
    Defendant moved for a non-suit, or a new trial, on the following grounds:
    1. Because, under the circumstances of the case, the defendant was in no wise liable to pay for the maintenance of the prisoner, Redden C. Deloach.
    2. Because, under the Act of Assembly, he was not liable for such maintenance, without notice.
    3. Because the decree is contrary to law and evidence.
    McCarthy, (for Davant,') for the motion. -, contra.
   Curia, per

Evans, J.

By the Act of 1839, page 48, sec. 30, “ when any person shall be taken on mesne or final process, in any civil suit, and from inability to pay the demand, debt or damages, or find bail if committed to gaol, and such person has no lands, tenements, goods, chattels, or choses in action, whereby his maintenance in gaol can be defrayed, the plaintiff or person at whose instance such party shall be imprisoned, shall pay and satisfy the same ; and if such person, or his attorney, shall refuse or neglect, after ten days previous notice, to pay, or give security to pay the same, when demanded, the sheriff or gaolor in whose custody such person is, may discharge him from such confinement; provided, however, such prisoner shall, before he is discharged, render, on oath, a schedule of all his estate, and assign the same.” The evidence in the case was clear, that R. C. Deloach wras an insolvent man, and had nothing whereby his maintenance in gaol could be defrayed. Under these circumstances the defendant, at whose suit he was in gaol, was liable “to pay and satisfy the same.” And as he was discharged from gaol by an arrangement to which the defendant was a party, the latter part of the above recited clause has no application to the case.

The motion is dismissed.

■ Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  