Assumpsit, commenced in the county court, in which the damages demanded were $200, and on nonassumpsit pleaded, the plaintiff had a verdict for $30.60; and from the judgment he appealed. On the trial in the Superior Court the case was this: One Joyner was committed in execution, at the suit of the defendant, to the jail of Rockingham, which was kept by the plaintiff, and, being required by Joyner, the plaintiff supplied him with diet up to 9 August, 1849, and his (11) fees therefor came to the sum of $30.60. On that day Joyner gave a bond for keeping the rules of the prison, and thereupon he was allowed until 29 November, 1849, and then he took the oath of insolvency, and was duly discharged out of execution. During the period between 7 August and 29 November the plaintiff continued to supply Joyner with food, and he was unable to pay any part of plaintiff's charges. After Joyner's discharge the plaintiff demanded payment from the defendant for the whole time, which the latter refused.
The court instructed the jury that the defendant was liable for the fees for the time Joyner was a close prisoner, but not for any afterwards; and plaintiff again had a verdict, and judgment for $30.60, and appealed to this Court. His Honor's instruction was right. It is true that in the act of 1741 it is provided that one in the prison bounds "shall be adjudged a true prisoner." But that is said in respect to the officer's liability for an escape, and has no reference to anything else. A person in the bounds was not such a prisoner as was, under the act of 1773, entitled to take the oath of insolvency or to call on the jailer for diet, and charge the creditor with the payment therefor. As to the first point, Howard v.Pasteur, 7 N.C. 270, is an authority. Indeed, the act of 1818, after reciting doubts whether a debtor who once took the benefit of the rules could afterwards be discharged as an insolvent, provided that he might go into close prison in order that he might then *Page 24 proceed, as a prisoner, to obtain his discharge, and it was not until the amendment to that act, in 1836, Rev. Stat., ch. 58, sec. 19, (12) that the debtor could be admitted to his oath while within the rules and without going into close prison. Therefore, the term "true prisoner," in the act of 1741, did not control that part of the act of 1773 which provided for the discharge of an insolvent; but the latter act was construed upon its own terms, requiring close imprisonment. In like manner the present question depends upon the particular provisions of those acts which require a jailer to find a debtor, and give recourse on the creditor therefor. They are sections 8 and 9 of the act of 1773, and the act of 1821, amended in 1836, now forming section 6, chapter 58, Rev. Stat. The first was restricted to debtors "confined" in prison; and the last is explicit that "whenever any debtor shall be actually confined within the walls of the prison, it shall be the duty of the jailer to furnish such prisoner with necessary food during his confinement," and if the prisoner be unable to discharge the fees therefor, the jailer may recover them from the creditor. Thus the officer is not bound to furnish food for one in the rules, and, therefore, cannot charge the creditor therefor. The debtor, with that degree of liberty, is supposed, with reason, to be able to provide for himself by his labor, if by no other means of his own; and it was not intended that he should live in the bounds in idleness, at the expense of this creditor, instead of earning a living for himself. Consequently, plaintiff recovered all he was entitled to, and the judgment for that sum is to stand.
As the plaintiff, however, was the appellant to the Superior Court, and recovered there no more than he did in county court, he was not entitled to costs on that appeal. The statute, indeed, vests the discretion in the Superior Court to order him to pay those costs. That was not done, and this Court does not interfere on that point. But the act is peremptory that in such a case the plaintiff shall not (13) recover the costs of the appeal, and to that extent it is the duty of this Court to modify the judgment. Consequently, the judgment for the damages, and for the plaintiff's costs in the county court, is affirmed; and the defendant is entitled to this costs in this Court.
PER CURIAM. Affirmed. *Page 25