
    Alexander Black, survivor ads. Saml. Hyams, Jaoler.
    Where a defendant takes the benefit of the insolvent debtors act, and does not assign enough to pay the Gaoler’s fees, he may recover them of the plaintiff at whose suit he was confined.
    This was a suit by sum. pro. in the nature of a special action on the case, for gaoler’s fees, for the maintenance of a prisoner arrested at the suit of the present defendant. The prisoner had been discharged under the insolvent debtors act, after a suggestion of fraud had been filed against him, and finally overruled. By his schedule it appeared that he had surrendered nothing but a few cloths. The prisoner appeared tobe so poor whilst in gaol as to be unable even to pay for the postage of a letter which had been addressed to him.
    The defendant contended that before he could be made liable in this case, the plaintiff was bound under the act of 1817 to prove the prisoner’s inability or refusal to pay as well as that the assignees had not sufficient to pay the fees. That no demand on or refusal by the prisoner had been proved, nor in fact any inability on his part, (for it was contended that the schedule and admission to the benefit of the Act, were not sufficient for that purpose,) though it was true that the assignees took nothing under the schedule. That the defendant was now ready and offered to prove that the prisoner had in fact funds at that time, and that his schedule was fraudulent. This proof the Recorder ruled to be inadmissible in this suit, and thought the right of the gaoler sufficiently established under the act of 1817, without proving a refusal, as that might, if necessary, be presumed; for it appeared that the assignees had not sufficient to pay the fees. That if the schedule was really false, it was incumbent on the present defendant, at whose suit the prisoner had been taken, to have proved it when he filed his suggestion, and that thr Recorder’s order for his discharge, and that without appeal, established the bona fide insolvency of the prisoner and the correctness of his schedule, the effect of which he thought him precluded from questioning in this suit, and he decided for the plaintiff.
    Eckhard, for the defendant appealed.
    Toomer, contra.
   The Court affirmed (he judgment of the Recorder.

Judgment affirmed.  