
    THOMAS FAUCET vs. PETER ADAMS.
    'Where a debtor, who is imprisoned at the instance of his creditor, lias no property in this State, out of which the prison fees and provisions and his sup- ■ port can be satisfied, notwithstanding he may have sufficient in another State, the jailor has a light to recover the amount from the creditor, under the Rev. Stat. ch. 58 sec. 6, making him responsible, “ if the prisoner be unable to discharge them." Ruffin, C. J. dissent.
    Appeal from the Superior Court of Law of Orange County, at the Fall Term 1851, his Honor Judge Ellis presiding.
    The case, as agreed upon, is in the words and figures following, to wit: Thomas Faucett vs. Peter Adams, &c.'
    In this case the following facts are agreed upon by the parties : that one Fleming was committed in due course of Law, as a debtor in Execution, at the instance 'of Boaz Adams, to the custody of James C. Turrentine, as Sheriff of Orange County, and he delivered the said Fleming to the plaintiff Faucett, the jailor of said County, the 26th of November 1839, and he remained in close prison, until the night ot the 1st of November 1844, when he made his escape by his own act, assisted by some one from the outside of the prison, by cutting through the iron bars of the window, but without the knowledge, or consent, or actual negligence of the plaintiff. In order to provide for the legal charges, and expenses of the jailor for keeping or maintaining the said Fleming, as a prisoner, under the said commitment after the first twenty days, an obligation, a copy of which marked A. is hereunto annexed, was taken by the plaintiff from the said Boaz Adams. Said Fleming filed his petition for a discharge under the'act of 1798, which was heard in prison on the 20th of December 1839, and the prayer of the petition was refused, and he was adjudged to remain in prison.
    , The judgment of the said Boaz Adams against Fleming, under which he was committed as aforesaid, was obtained at May Term, 1839; of Orange County Court. It is further agreed, that the negroes and other property of Fleming aforesaid were then sufficient to pay off the plaintiff. — - Said judgment was carried to the western district of Tennessee, in the fall of 18SS, or as early as the 1st of March 1839, and taken from thence to Texas, in the Fall of 1839, that the said negroes were in the possession of Fleming’s children, as divided amongst them last year (June 1850) by commissioners appointed for that purpose. A judgment was obtained by the plaintiff against Fleming, at May Term 1844, of Orange County Court, for five hundred and nineteen dollars and sixty cents, being the prison fees, due up to the issuing of the writ in that case, and execution of fi. fa. issued thereon to the county of said Fleming’s residence, and was returned, “ no property was to be found,” Faucett’s account in jail till the escape. He acted as jailor. In the present case a verdict has been rendered for the plaintiff, subject to the opinion of the Court, upon the facts above stated. If the Court should be of opin-.with the plaintiff, judgment is to be given in accordance with the verdict; if otherwise, judgment of non suit is to be entered.
    The following is a copy of the bond referred to:
    We promise to pay to Thomas Faucett, jailor, &c., all such prison fees and charges as he may by law be entitled to by reason of the imprisonment of Mordecai Fleming in the public jail of Orange, at the instance of Boaz Adams.
    In witness whereof, we have hereunto set our hands and ■seals, this 20th Dec. 1839. B. ADAMS, (Seal.)
    P. ADAMS, (Seal.)
    Test. John A. Gilmer.
    Norwood, and J. H. Bryan for the plaintiff.
    Gilmer, for the defendant.
   Pearson, J.

By the Revised Statute, ch. 105, sec. 37, Jailors are allowed for finding each prisoner food, &c., thirty cents per day. By ch. 38, sec. 6, “ whenever a debitor, shall be. actually confined within the walls of a prison, , it shall be the duty of the jailor to furnish said prisoner with necessary food, during his confinement, should he require íhe same, and the jailor shall be authorised to demand the same fees therefor, as are allowed by law, for keeping other prisoners, and may, if the prisoner he unable to discharge them, recover ihe same from the party at whose instance such debtor was confined in jail. And when, the debtor shall have remained in jail for the space of twenty days, it shall be lawful and sufficient for the sheriff or jail- or, to give notice thereof, 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.’’ It was argued by Mr. Bryan with much force, that, as the jailor is required to furnish food daily, and is allowed thirty cents ■per day, by a proper construction of the Statute, he has a right to require the creditor, who has given security tor the prison fees, to pay up from day to day, or that, properly, the bond which he gives, should be on condition to pay the prison fees, at such times as the parties may agree on, say, at the end of each week, or month, or six months ; for it is unreasonable that there should be no right to require payment, until the expiration of the imprisonment, as that might last for many years, even until the death of the prisoner, during which lime many jailors have gone out of office, and certainly, whoever was jailor would find it inconvenient to advance money out of his own pocket, in discharge of a duty, required of him by law, if the time of repayment was indefinite. We are inclined to adopt this construction, but will not do so, definitively, as we prefer to put the decision on another point. Again it is said, by giving the security, the defendant concluded the question as to the debtor’s ability to pay the prison fees, for he was not. bound, to do so, except upon the supposition of the debtor’s inability; and after acting upon that supposition, whereby he took from the jailor the right to discharge th® debtor out of custody, and in that way relieving himself ■from the burden of his support, it is not consistent with fair dealing, afterwards to turn round and say, he was able to pay the prison fees, and I will not be bound by my ^obligation ; because if he intended to make that issue, he ■ought to have done so, whereby he refusing to give the bond, the jailor could have discharged the debtor, “ by taking the responsibility.” There is some force in this view of the question also, but we pass it by.

What is the meaning of the words, “ if the person is unable to discharge the prison fees ?” We think the true construction is, if he has no property or friends within the iState, out of which the money can be collected by any process, which our Courts of Law or of Equity have pow-•er to issue. But in the present case, the debtor had no property or friends within this State, out of which he could ■have raised the amount, even if he had been disposed so to ■do.

It is true, there were certain slaves which the debtor had caused to be run off to Texas, and possibly the plaintiff, by instituting proper proceedings in Texas, might have been able to collect the amount of the prison fees. But it is certain it would have cost him ten times the amount, and jt is also certain, that, to require a jailor to support a debt- or, at his own expense, or to follow his property to Texas, California, or China would be a most unreasonable imposition upon the public officer ; and we think the legislature never intended it. If the jailor cannot force him to pay by any process of any of our Courts, because he has nothing, within the jurisdiction of this State, then, in the language of the Statute, he is “ unable to pay.”

The question, whether a jailor would forfeit his right to be paid his fees, if he opened the door and let the prisoner ■walk out, is not presented by this case, for it is agreed •there was no actual negligence on the part of the plaintiff.

Of this opinion was Nash, J. Ruffin, C. J. dissented.

Pee. Curiam. Judgment affirmed.  