
    Woods against Rowan and Coon.
    debt foi- the penility of a bond, given to a she-for’the liberties not a good plea.
    THIS was aü action of debt on a bond, for the penal" ty. The bond was given by the defendants, to the plaintiff, as sheriff of the county of Washington, as se- . „ - ... „ , , Curity tor the liberties oí the gaol.
    The defendants, after craving oyer of the condition, which is that Roto an shall remain a true and faithful prisoner, and shall not depart at any time, or in any wise escape, or go without the limits of the liberties of the gaol, of the said county, until discharged by due course of law, pleaded that the said Rowan, from the date of the said bond, did, and still doth, remain a true and faithful prisoner in the plaintiff’s custody; and did not, at any time, or in any wise escape, or go without the limits of the liberties of said gaol, according to the said condition, to wit, at, &c. concluding with a verification. The defendants, then, by leave of the court, after praying oyer, and stating that it was read to them as aforesaid, pleaded, secondly, that the said bond was, on, &c. at, &c. made and executed, by the defendants, to the plaintiff, as sheriff of the county of Washington, in pursuance of the statute in such case, &c. and for the indemnity of the plaintiff, in admitting Rowan to the liberties of the said gaol, who was then a prisoner in the plaintiff’s custody, by virtue, &c. and averred, that the plaintiff has been wholly indemnified by the defendants in the premises; and has sustained no loss or injury in consequence of admitting the said Rowan to the liberties of the said gaol, to wit, at, &c. concluding with a verification To the second plea, the plaintiff demurred»
    
      Foot, in support of the demurrer.
    Russel, contra.
   per Curiam.

Several exceptions have been taken' to r this plea ; but there is one which must be fatal. It is ko answer to this action to say, that the plaintiff is not damnified; the condition of the bond is, that Rowan shall remain a true and faithful prisoner, and shall not depart at any time, or in any wise escape, or go without the limits of the liberties of the gaol; the moment he does so, the bond is broken, and a cause of action arises on the penalty. How much the plaintiff shall recover on this bond, for the escape of Rowan, if he has escaped, is a distinct question. In effect, the bond given to the sheriff is intended as an indemnity, for his liability over to the person at whose suit the prisoner is committed ; but technically, the bond is not a bond of indemnity j and as the plea does not answer the condition of the bond? it cannot be supported. The court do not think it necessary to decide, now, what the plaintiff will have a right to recover. There must be judgment for the plaintiff on $iis demurrer.

Judgment for the plaintiff.  