
    * James Bridge versus Ichabod M’Lane & Al.
    In an action upon a bond for the liberty of the prison yard, the sheriff or jail-keeper is a competent witness to prove that the creditor consented to the debtor’s liberation.
    This was an action of debt upon a bond for the liberty of the prison yard. Upon oyer of the bond and the condition, the defendants plead in bar that M’Lane continued a true prisoner, &c., until the 7th day of October, A. D. 1803, when he was lawfully discharged by Arthur Lithgow, Esq., then and still being sheriff of the county, and keeper of the jail, by and with the consent of the said Bridge. There is a second plea to the same effect, omitting the consent of the creditor.
    'The plaintiff replies to each plea that the defendant M’Lane was not lawfully discharged, as he has set forth in his plea, and tenders an issue to the country, which is joined by the defendant.
    At the trial of these issues before Thatcher, J., October term, A. D. 1805, the defendants produced a written permission from Mr. Lithgow, the sheriff, to M’Lane, to go at large. They then produced th« sheriff as a witness to prove the plaintiff’s consent to 
      M’Lane’s liberation. The plaintiff objected to his admission, as an incompetent witness. The objection was overruled by the judge, and the defendants obtained a verdict. To this opinion of the judge, the plaintiff filed his exception pursuant to the statute This exception came now before the Court, upon a motion for a new trial.
    
      Mellen, for the plaintiff,
    cited the case of Tiley vs. Cowling, 1 Lord Raym. 744.
    
      Wilde for the defendants.
   Curia.

The motion for a new trial is grounded on the admission of Mr. Lithgou, the sheriff, as a witness to prove that the debtor in execution was discharged from prison by the paroi direction of the creditor, the plaintiff supposing that he, being sheriff, and keeper of the jail, was an incompetent witness.

That a creditor may by paroi authorize the jailer to discharge his debtor is not denied. For this point 3 Dyer, 275, a, is an express ■authority. But it is said that the sheriff is not a competent witness to prove this discharge in this action. We know of no rule or principle of law by which the sheriff, because * of [ * 521 ] his office, is made an incompetent witness in this case.

As this verdict cannot be given in evidence in an action against him for the escape of this debtor, who was committed in execution, he must pay the debt to the plaintiff, unless he can produce evidence that he discharged him by the creditor’s authority. From this action he would be protected, if the plaintiff had recovered. We therefore are of opinion that the judge did right in admitting the sheriff as a competent witness; and judgment must be entered for the defendants agreeably to the verdict.  