
    J. J. Schroter v. Duncan Crawford.
    sheSr1Gcoiiects money for one custody under Ü themone^'aíhis^' íienissuíendS -ío!s‘caudalin iatf /¿/“' ‘may, fierhaps, ttoTagáin™ thó
    
      Tried before Mr. Justice Gantt, at Chesterfield— Fa'il Term* 2833.
    ^'11^ was a ru^e against tbe sheriff, to compel him to pay over to the plaintiff, the money collected in tliis case. The facts were these — Daniel Holly ob-a judgment against Schroter, on which both a fa‘ aU(2 ca% m’ were issued, and under the latter, Schroter was arrested about a year ago, and has been confinement ever since, and declares his intention io die in jnd) before he will pay the debt. During his ¡¿confinement, the sheriff has collected the amount of the execution in this case. Holly' is insolvent, and Schroter’s jail fees, amounting to a hundred dollars, unpaid, and both plantiff and defendant neglect to pay them. Holly contended that the money should be paid to him — the sheriff, that he should be permitted to retain his fees out of the amount collected ; and Shroter insists that he is entitled to it, and at his instance, this rule was obtained. The presiding Judge refused to make any other order in the case, except to discharge the rule.
    Levy, on the part of Schroter,
    appealed, and now moved to reverse that order, on the ground that he is entitled to the money, and the presiding Judge should have declared the law of the case, and ordered it to be paid to him.
    Clinton & Hanna, contra.
   Johnson, J.

The cases of Richbourg v. West, 1 Hill, 309, and Mazyck & Bell v. Coil, ibid, 311, note (a), are full upon the points, that the arrest of a defendant upon a ca. sa., is prima facie a satisfaction of the debt, so long as the defendant remains in custody, and that the plaintiff cannot proceed upon his fi. fa., as long as he is custody under the ca. sa. It is very clear therefore, that Holly has no right to the fund in eourt, for he has the body of his debtor in satisfaction of his debt. 1 think it is equally clear, that the sheriff has no right to the fund. At common law, «cither the sheriff nor the plaintiff were bound to provide for a debtor in execution; he was obliged to “starve in the name of God,” unless he was able to maintain himself, or his friends would do it for him. At the common law therefore, the sheriff had no right to look to the debtor in execution, for his subsistence, unless upon a contract to pay, and there is no act of our Legislature which gives him any remedy against the debtor. The Act of 1817, gives the sheriff a remedy against the plaintiff, in case of the inability or refusal of the defendant to pay the fees, but that gives him no right against the defendant. I am not prepared to say, that the mere act of accepting subsistence ■at the hands of the sheriff, would not, under the circumstances, raise an implied promise to pay for it, if the debtor was able; hut conceding that it does, that gives him only a right of action, and could not be adjudged in the form of a rule.

The order of the Circuit Court, is therefore reversed.

O’Nealt, & Harper, Is. concurred.  