At the common law it was unlawful to confine a person in custody for debt in the same prison with those imprisoned for crimes, unless the debtor assented to it. If a debtor were thus imprisoned, ,he had his action for the wrong against the sheriff.

•Our statute directing the erection of jails, provides that the jail *124shall contain not less than two apartments, one of which shall be appropriated to the reception of debtors; the other shall be used for the safe keeping of persons charged with or convicted of crimes. This provision is clearly predicated upon the principle that the unfortunate debtor is not to be associated with the unprincipled and profligate felon. And the court have no doubt but thus to associate *a debtor is a wrong for,which he may have an action for redress — the difficulty is, against whom shall such action be brought ?

The fact that this action is sustained, in England, against the sheriff, does not warrant us in sustaining it here. He has, with us, no authority to provide a jail, or to imprison a debtor in any other place than the public jail. It is the duty of the commissioners to erect and provide a jail. If this duty be performed — if there be a public jail with separate apartments, and the sheriff shall, in such case, confine a debtor among criminals against his consent, no doubt he would.be subject to this action. But the facts agreed present a very different case. Here was a jail with but one apartment, and that contained persons charged with criminal offenses. The sheriff had legally arrested the plaintiff — ■ he could not give bail, and it was the duty of the sheriff to confine him in the public jail. Had he imprisoned him elsewhere, it would have been illegal. The plaintiff, in the action, might have considered it an escape — 'the defendant a trespass. Where the sheriff acted in strict obedience to his writ, and in the performance of his duty, he shall not be subjected to an action. The plaintiff has sustained an injury from others, and must seek redress against the wrong-doers — not against the innocent sheriff.

The motion for a new trial is overruled.