
    William Walton, Assignee, vs. John Oswald.
    Where a defendant is in the prison hounds under Ca. Sa. and lie is discharged by the plaintiff it releases the surety to the prison bounds..
    The'discliarge to release the surety need not be in writing.
    A direction from the plaintiff by his agent, to the sheriff to stay proceedings against the defendant, who is in the prison bounds, is a sufficient authority to the sheriff to discharge the defendant.
    This was an action of debt on a Prison Bounds Bond. The.declaration set forth that the plaintiff, as survivor of William Walton & Co. on the first of June, 1818, in Colleton District, recovered a judgment against Wm. Youngblood, and' afterwards, on the ' 25th January, 1823, issued a Ca. Sa. under which Youngblood was arrested, and on the 12th of April, 1823, the defendant, as his surety for the bounds, signed the bond upon which this action was brought. The allegation of the breach of the condition of the bond was admitted by the plea of the defendant, who justified under'a licence from the plaintiff, which was denied by the replication, and upon this point the parties joined issue.' The plaintiff’s case being admitted by the pleadings, the defendant proved by the sheriff of Colleton District that in consequence of a letter dated the 17th April, 1823, from Robert Martin, as attorney of Aiken, (the real plaintiff) directing him as sheriff to stay ¡¡roceeding in Walton’s case,” he discharged Youngblood from arrest, under the- act of 1815; buthe produced no writing shewing that Youngblood consented to this discharge, but the witness stated that he had done so orally. The defendant also offered to go into evidence to shew that Youngblood was, at the time of his arrest, and had been ever since, totally insolvent.— The evidence was objected to by the plaintiff, but the objection was overruled by Huger, J. and the Juryfound a verdict for the defendant,
    
      Grimke,
    
    for the plaintiff nbw moved for a new trial,, on the grounds, that the testimony of the defendant was insufficient to prove that Youngblood was discharged under the act of 1815, bis consent to the discharge not being in writing, and that the evidence of Youngblood’s insolvency was inadmissible.
    He referred to the case of Miller, assignee, vs. Bag-well, 3d M‘Cord, p. 429, where it is decided “ that the sureties to a prison bounds bond, cannot discharge themselves by a surrender of their principal to the sheriff.” If the surety in- .whose custody Youngblood was, could not surrender him a fortiori, the sheriff could not discharge him, either under the act of 1815, or in any other way. Besides fie was not in.the custody of the sheriff, and under the above decision he never could return to the custody of the sheriff. The sheriff, therefere, could do no get. as sheriff, and none but the sheriff can discharge under the act. If the sheriff had not the power to discharge, the authority relied upon, to wit, the letter from Martin, (the agent of the real plaintiff,) clearly could not invest him with the power to discharge Young-blood, and his leaving the bounds was a breach of the condition of the bond which, ipso facto became forfeited to the plaintiff.
    Elmore, contra.
   Curia per

Nott, J.

I do not discover any good ground For a new trial in this case. It is not material whether the case comes within the provisions of the act of 1815, or not. For if Youngblood was discharged from confinement or from the prison bounds by the directions of the plaintiff or his agent, it was a release of the surety, and the authority of the agent is not questioned. The order to the sheriff is not very explicit; it is that he should “ stay proceedings” against him. It was known that he was then in actual custody, and to stay poeeedings, must mean to cease to hold him in custody, or it could mean nothing. The sheriff had a right to give it that construction. The decision in the case of Miller and Bagwell, in 3d M‘Cord, does not reach this case. The Court then held that the surety to the sheriff could not surrender his principal. That is no part of the condition of the bond. The object of the bond is to indemnify the sheriff against an escape. But we have never held that if the sheriff discharge the prisoner himself, that it will not release the surety, although he may make himself liable. I am of opinion, therefore, that the motion ought to be refused. New trial refused.  