The record presents two questions of' law, which control the whole case, and which only we propose to consider.
1. The first question is made by the plaintiff’s demurrer to the third answer, and is this : Where a judgment debtor, in a civil action, is imprisoned under an order of arrest issued on the judgment, and the sheriff or jailor demands from the judgment creditor the payment of‘jail fees weekly in advance, and such demand is not complied with, is the sheriff thereupon justified in permitting his prisoner to go at large? We think he is so justified; and that the court below did not err in overruling the demurrer to the third answer.
Section 173 of the code of civil procedure provides, that “any person causing another to be committed to jail under the provisions of this chapter, shall be liable, in the first instance, for the jail fees, and shall, if required by the jailor, pay such fees weekly in advance; and such fees, so paid, shall be a part of the costs of the case.”
This right to demand the payment of jail fees is not the right of the prisoner, nor does it concern him ; it is the right of the sheriff, and is his personal concern. If the sheriff may not discharge the prisoner on demand and non-payment of jail fees, what must he do ? Must he sue the creditor, and in* the meantime subsist the prisoner at the risk of never being paid for it? Must he call in the overseers of the poor to *198feed him ? or must be procure a writ of habeas corpus, and in that way have him discharged? We think it would be unreasonable to suppose that the legislature intended to impose any such forms or burdens upon the sheriff; and that when a judgment creditor, haying resorted to the extreme remedy of imprisonment, makes default, after due demand made, in providing for the subsistence of his debtor, he virtually assents to his discharge. At all events he has no right to complain of it. The 168th section of act of March 16, 1853, “ of the jurisdiction and procedure before justices of the peace,” etc., provides:
“ It shall be lawful for the sheriff or jailor, receiving any person imprisoned on execution issued on any civil proceeding, at any time, when there is no money in his hands to pay for the sustenance of such prisoner, to discharge him from prison.”
Now, the terms in this statutory provision are quite broad enough to cover the question before us; but, inasmuch as the statute in which it is found is one concerning “ the jurisdiction and procedure before justices of the peace,” its application to cases of imprisonment, under process issuing from courts of record, is questioned. Be this as it may, it is at least so distinct an indication of legislative policy, as to render it safe for us to make its provisions a rule of decision in analogous cases.
But it is objected that it does not appear from the answer, but that the prisoner himself had the means of providing for his own subsistence. This is not necessary. The statute makes the creditor “ liable in the first instance ” — not the debtor.
Again, it is objected that the answer does not show that the sheriff discharged the prisoner for the reason that the jail fees were unpaid. But the motive of the sheriff is matter of indifference, if he had a legal justification for his act.
2. The second question is, whether, in an action against a sheriff for permitting the escape of a prisoner in custody on civil process, and such prisoner is by law privileged from arrest, the sheriff can avail himself of such privilege in bar of *199tbe action ? This question is raised by tbe overruling of tbe demurrer of tbe plaintiff to the amended answer, No. 5, and tbe exception thereto.
Whether the facts stated in this answer make out a case of privilege from arrest in behalf of Seiber, we do not propose to consider; but only whether, supposing such privilege to have existed, it can be made available to the sheriff in this action.
The fifth section of the act of June 1, 1881, “ privileging certain persons from arrest and imprisonment ” (3 Curwen’s St. 2520), provides:
“ That the associate judges of the several courts of common pleas within this state, during the sitting of their respective courts, and all'attorneys, counselors at law, clerks sheriffs, coroners, constables and criers, and all suitors, witnesses and jurors while attending court, afod while going to and returning from court, shall be privileged from arrest.”
The tenth section of said act provides:
“ That if any person shall be arrested contrary to the provisions herein contained, such person may and shall be discharged by writ of habeas corpus, or in a summary way by motion before the court from which the process shall have issued, at the costs of the party swearing out such process.”
The exemption from arrest of the prisoner, in this case, is claimed on the ground of his being a suitor in court at the time of his arrest. Now, it.will be observed that the above quoted fifth section of the act, which provides for the exemption of a suitor, nowhere declares the arrest of any person designated in that section to be void; the act imposes no penalty upon an officer for making such arrest, nor is it any where intimated that the officer making the arrest is empowered to determine the question of exemption, and to release the prisoner in case he shall find him privileged from arrest. Indeed, in the absence of clear and definite legislation on this subject, it is difficult to suppose that the legislature ever intended to confer such power. Whether, on a given state of facts, a person is privileged from arrest, may often become a nice and difficult question of law, for'the determination of *200which constables, sheriffs and their deputies are not generally supposed to be eminently fitted; and the power, if given, and to be exercised at their peril, would involve risks and responsibilities by no means desirable. This question is very different from that arising on the demand and non-payment of jail fees. There, no complex questions of law or fact can arise. Here they may. There, the sheriff has a direct personal interest. Here, so far as we can see, he has none. And while the law is silent as to any right of the officer to discharge the prisoner, the tenth section of the act referred to distinctly points out and provides the manner in which, and the authority by which a privileged person may be discharged from arrest; to-wit, on habeas corpus, and on motion to the court issuing the process in virtue of which the arrest has been made. These remedies, one or both, are always and readily available. And if, either on habeas corpus or on motion, the court or judge should err, to the prejudice of the prisoner, the ordinary remedies for the correction of error are open to him.
It will be observed that the statute denominates these exemptions, privileges from arrest. Such we think they are. 'Privileges — personal privileges — privileges personal to the party arrested, which he may waive or insist upon as he may choose; and with which the officer making the arrest, under process regular on its face, and issued by a court of competent jurisdiction, has nothing to do, except to obey such process until it is superseded by an order of paramount authority, and to see to it that the prisoner is furnished with reasonable facilities to apply for his discharge on habeas corpus or on motion.
These views, we think, are well sustained by Tarlton v. Fisher, Douglass, 671; Gyer’s Lessee v. Irwin, 4 Dallas, 107; Chase v. Fish, 16 Maine, 132. See also notes to Hare v Hyde, 3 E. L. & E. R. 436.
For error in overruling the demurrer to amended answer No. 5, the judgment of the court of common pleas will be reversed, and the cause will be remanded to that court for the *201trial of tbe issue of fact, remaining undisposed of,’as to the demand and non-payment of jail fees.
Sutliee, C.J., and Peck, Gholson and Scott, JJ., concurred.