
    David P. Saxon v. John Boyce.
    Columbia,
    May, 1828,
    In an action by a gaoler for gaol-fees, tlie sheriff is not an incompetent witness for the plaintiff, unless it appear that he is interested in the event of the suit; and such interest is not to be presumed merely from his official relation to the plaintiff.
    When a debtor in execution escapes from prison, the gaoler forfeits his right of action against the creditor for gaol-fees: The only exception is, where the escape has been occasioned by the act of God, or the enemies of the country.
    Tried before Mr. Justice Gaillard, at Laurens, Spring Term, 1828.
    This was an action by sum. pro. to recover fees, claimed to be due to the plaintiff, as gaoler of Laurens District, for dieting ETishfi. Adair, who had been confined in&ttflgander a ca. sa. at by the defendant, on the ground that as sherhjjijihe was the only gaoler knawn. to the law, and must be ijiresurfiürff lo be interested, either by aright to receive the fees after they were recovered, or by a liability over to the plaintiff, if they were not. The objection was overruled; and the witness proved the confinement of Adair at the suit of defendant, and the amount of fees for dieting him. On his cross-examination, he proved that Adair had escaped from gaol whilst in execution, and that there was no one residing in gaol at the time but a negro woman. Decree for plaintiff.
    The defendant appealed, and moved to reverse the decree, on the grounds—
    1st. That the sheriff was an incompetent witness for the plaintiff, and ought to have been excluded.
    2nd. That the gaoler had forfeited his right of action against the defendant by the escape of Adah; particularly as there was no white person, who had care of the gaol at the time.
    Vide the fee-i3ls’Acts& of ’ 1827. p. 57.
    O’Neabl and Jambs, for the motion.
    Downs and Young, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The grounds of this motion do not call in question the right of the plaintiff to maintain this action in his own name; and the objection to the competency of Barkesdale as a witness, rests on the ground, that in the event of plaintiff’s failing to recover against the defendant, he had a right of action against the witness. This is an assumption not warranted by the facts of the case. In the appointment of a gaoler, the sheriff may stipulate for what terms lie pleases: If in this case he had stipulated to pay the plaintiff a sum in gross for his services, and reserved to himself the fees of office, then the gaoler would have had no interest to maintain this action ; the sheriff must have been the plaintiff, and not a witness. Rut if, as the circumstances here seem to warrant, the contract was that the plaintiff should have the fees of office, and it is in that event alone he could by any possibility be entitled to sue, then the sheriff could have no interest, unless it was shewn that he had undertaken to guarantee them to the plaintiff. This fact was not proved, and he was therefore properly admitted.

Alsept v. F.yles,2 H. Bl. 108.

Acts of 1813, 20.

The defence as to the merits, is, I think, better sustained. The plaintiff having derived his interest in these perquisites through the sheriff, must, under the most favourable circumstances, be content to occupy the same situation that he would have done, had he been plaintiff. The fees allowed by law for keeping and dieting a debtor, confined in execution, is the reward provided fpr those services ; and, like all others, whether they arise from express stipulation or legal implication, can only be claimed when such services have been faithfully rendered. The law imposes on a sheriff who takes the body of a debtor in execution, an obligation to keep him safely ; and so rigidly is this duty enjoined, that nothing but the act of God, or the enemies of the country, will excuse the non-performance. The services for which remuneration is now asked, have not been performed in the manner required by law, and the reward is not due. But this case is even stronger: Neglecting to keep some white person living in the gaol, was in itself an act of positive negligence, by which the defendant lost the security which the person of his debtor gave him for his debt; and it would be unreasonable that he should be held liable for services, from which he not only did not receive a benefit, but sustained a legal injury.

Motion granted.  