
    SAMUEL BUNTING v. THOMAS C. McILHENNY.
    The action against the creditor for the jail fees of an insolvent debtor, given by Rev. Code, e. 59 s. 5 to the jailor, cannot be maintained by the sheriff as the jailor’s principal.
    Case, tried before Warren J., at Fall Term 1867 of the Superior Court of New Hanover.
    The plaintiff was the sheriff of the county, and one Biddle was keeper of the jail under him, and as such had supplied with food an insolvent debtor who was in prison at the suit of the defendant.
    A verdict was entered below for the plaintiff, subject to the opinion of the Judge upon his right to maintain the suit, and with liberty to have a nonsuit entered if that opinion should be in favor of the defendant.
    The court being of opinion with the plaintiff, gave judgment accordingly, and the defendant appealed.
    
      W. A. Wright, for the appellant.
    Person, contra.
    
   Pearson, C. J.

According to the words of the statute the jailor is to furnish food to the debtor, and he is authorized to sue the creditor for the value of the board so furnished. So no question is made but that the action may be maintained in the name of the jailor.

But it is said the action may also be maintained in the name of the sheriff when, as in this case, the sheriff and jailor are different individuals, and the argument is put on the g-round that at common law the jailor is the appointee, the deputy, and mere agent of the sheriff, who, under the rule respondeat superior, is liable for all of his acts of commission or omission, and consequently may sue for whatever he may be entitled to as fees or perquisites of office. This right of the sheriff to sue for the fees or perquisites of office to which his agent the jailor is entitled by the common law, may be admitted, but at common law the creditor was not liable for the board of the debtor while in prison. The liability is created by statute, and of course the right to sue must depend upon the words of the statute, and cannot be extended by reference to the common law. This conclusion is confirmed by the practice under this statute. We find many cases in which the action has been maintained in the name of the jailor, but no case in which the action has been brought in the name of the sheriff. So this is an action of the first impression, and our conclusion is that it cannot be maintained.

The judgment in favor oí the plaintiff is set aside, and a judgment of nonsuit on the point of law reserved.

Per Curiam. Judgment for defendant.  