
    
      L. L. Swindler, assignee, vs. William O'Connor.
    
    A prison bounds bond which does not express the name of the plaintiff in execution may be assigned, and the fact that the assignee is the plaintiff in execution, shewn by evidence aliunde.
    
    
      Before Butler, J. at Newberry, Spring Term, 1845.
    This was an action of debt, by sum. pro. on a prison bounds bond, executed by W. T. Dillen as principal, and the defendant as surety .# The r(ecital preceding the condition of the bond was as follows. “ Whereas, the said W. T. Dillen has been arrested by virtue of a writ of capias ad satisfaciendum, and is desirous of availing himself of the benefit of the Acts' of the General Assembly of the said State, to establish and extend the bounds of the prisons or common gaols in the several districts of the State.” The condition was in the usual form, and in no part of the bond was the name of the plaintiff in execution expressed. Dillen, the principal, did not, as required by the condition, render to the clerk a schedule of his estate, whereupon the bond was assigned to the plaintiff and this action commenced. It was contended that the bond was not assignable, inasmuch as it did not express the name of the plaintiff in execution. His Honor ruled that the plaintiff was entitled to recover, upon his shewing that he was in fact the plaintiff at whose suit Dillen was arrested.
    The defendant appealed.
    Caldwell, for the motion.
   Curia, per Butler, J.

It cannot be pretended but that the bond in this case is good for some purpose. It is not void; for it is an obligation to the sheriff, or his assignee, in express terms, for the sum of eighty-five dollars. ' To some extent, the condition is equally explicit, to wit — that the principal had been arrested on a ca. sa under which he had availed himself of the benefit of the prison bounds. It was a question of fact to ascertain whether he had complied with the express requisitions of the bond. That, of course, was dehors the bond, and had to be established by parol evidence. That being established, the next inquiry was, who was entitled to claim the penalty, or the damages intended to be secured by the penalty ? The capias had been taken out by some one. Was it not competent to shew, by the actual proceedings of the sheriff, on the process itself, as they appeared by entries duly made, who was the plaintiff in interest ? This was capable of much more certain attainment than the facts going to fix the liability. Indeed, the liability being fixed to pay the penalty, it was the interest of the defendant to have it reduced to the true and less amount than the penalty itself; and that could not be done but by the production of the ca. sa. under which the principal had been arrested. When that was produced, both the right of the plaintiff, and the extent of his recovery, were disclosed. Motion refused.

Richardson, O’Neall, Evans, Wardlaw and Frost, JJ. concurred.  