35 N.C. 10 | N.C. | 1851
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,
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. *25