#### Abel Richards Junior *versus*Elijah Crane, Sheriff of Norfolk.

If u debtor, confined in close prison, asks of the gaoler refreshment, but states that he has no property and is unable to pay for it, this is a sufficient “ claim of relief as a pauper,” to authorize the discharge of the debtor under *St,*1821, *c.*22.

The officer committing a debtor to gaol is not obliged, under that statute, to give the creditor notice of the commitment, or of a demand by the gaoler of security fojr the debtor’s board.

Debt for an escape. Plea *nil debet.*

At the trial, before *Morton*J., it appeared, that Jeremiah Baker was committed to gaol on an execution against him in favor of the plaintiff, and that after remaining in gaol twenty-four hours, he was discharged by the gaoler. When Baker was committed, he stated to the gaoler that he had a cold, was wet, and needed refreshment, and that he wished to be furnish*222ed with something warm, but that he had no property, and could not pay for it. The gaoler then asked the deputy sheriff who served the execution, if he had any money to pay for the debtor’s board, or would be accountable for it. He replied, that he should not pay or become accountable for *t, as he had not been requested to do so by the creditor. No notice of the commitment was given to the creditor or his attorney.

Oct. *29th.*

*Oct. 30th.*

The plaintiff’s counsel contended that the defence was not supported, because it did not appear that the debtor claimed relief as a pauper, and because it was the official duty of the deputy sheriff to give notice of the commitment to the creditor or his attorney. A nonsuit was entered by consent, these questions being reserved for the decision of the whole Court.

The defence was founded upon the provision of *St.*1821, c. 22, § 2, “ that when the keeper of the prison, at the time of the commitment of any person upon mesne process or execution, shall require of the creditor, &c. or the officer committing, security for the expense of supporting such debtor, in case he shall claim relief as a pauper, unless satisfactory security is given, &c. he may, after twenty-four hours from the time said poor' debtor shall claim relief as a pauper, discharge said debtor from imprisonment.”

*Leland*and *Cushing,*for the plaintiff,

insisted that the debtor, in claiming relief, should represent himself as a pauper in the *technical*sense of the word ; and that the deputy sheriff was bound to give notice to the creditor, of the demand of security for the expense of supporting the debtor.

*Mann, contra,*cited *Blood*v. *Austin,*3 Pick. 259.

*Per Curiam.*

If a technical application for relief as a pau per should be required, the provisions of the statute would be confined to such debtors as are never committed to prison, unless from spite or malice. The legislature intended that the statute should apply to any case in which the debtor should request relief, representing himself as poor, and no funds or security should be provided on the part of the creditor for his support. Whether such representation is true or not, is immaterial to the sheriff.

It is objected that no notice of the commitment or of the application for relief, was given to the creditor or his attorney. *223The statute does not require notice, and we do not perceive that it is necessary for the preservation of the rights of the creditor. The release from prison does not deprive the creditor of his remedy against the debtor’s property ; and if he intends to keep the debtor in confinement, it is his duty to see that the requisite funds are provided for his support.1

*Nonsuit made absolute.*

1

 See Revised Stat. c. 90, § 113, 114 ; *c.*97, § 50.