
    James Cantey, Sheriff of Kershaw, vs. Thomas Duren & William Beckmhan
    
      Assumpsit on an agreement not sealed, otherwise in the, form of a bona for observing the rules, under the prison bounds act; Demurrer sustained; the security required by that act is a bond.
    In this case an action of assumpsit was brought on an agreement which was was drawn in the form of a bond; but which had no seal attached to it. It appeared that the plaintiff, as sheriff, had taken it as security for observing the rules, under the prison bounds act, The defendants filed a general demurrer, which was sustained by the circuit court; on the ground that the sheriff could not recover, as the instrument produced was not a bond. A motion was now submitted to reverse that decision»
    
      Evans and Levy, for the motion.
    Argued that the prison bounds act only requires satisfactory security to be given for keeping the rules, without prescribing the form in which it shall be taken, and that all the purposes of the act may be answered by an agreement of this sort» The security required by the act is intended for the indemnity of the sheriff, unless as regards one particular provision; it directs that if a prisoner fail to give in his schedule, his bond shall be assigned. Such an agreement as this could not be assigned, and the act may havr contemplated that the sheriff should always bring suit in his own name unless where a bond was given. But if this is not the security intended by the act, still it is a good and binding agreement. But for the act, it would not have been a good •agreement; because the consideration, the suffering of the prisoner to go at large, would have been unlawful. This act permits and requires the-sheriff to suffer the prisoner to go at 'large, to a certain extent, and makes it a good consideration for the agreement to indemnify him.
    
      Miller, contra.
    
    The whole act must be construed together, and from the whole, it is apparent that a bond was the Security contemplated. The act permits the prisoner to go at large, only on the condition of giving the security which it prescribes. It is still unlawful for the sheriff to suffer him to be at large upon any-other condition or security. It would be dangerous to construe the act so loosely; the sheriff might, with the same reason, rely on a mere verbal promise to observe the bounds. " '
   The opinion of the court was delivered by

Mr. Justice.Huger.

Although the second and third clauses of the prison bounds act only require the sheriff to take satisfactory-security, yet what was regarded by the legislature as satisfactory"'security, is plainly intimated in the 7th. clause. - The words are f any prisoner committed on execution as aforesaid, who shall’ hot give in such schedule agreeable to the tenor of his bond’, shall not be any longer entitled to the benefit of the rules.

That the prisoner in execution is not entitled to the benefit of the rules without having given a bond, is not only a plain implication from the words, of the clause, but such has been the construction given to the act (as far as we can ascertain from the practice under it) ever since its date in 1788. A-practice so old should not be lightly disturbed, the more especially as such a practice appears essential to the accomplishment of one of the objects of the act; which is to secure to the plaintiff, a right to the assignment of the bond; should the prisoner not •comply with the requisition of the act. The words are “ that the (prisoner’s) bond shall be forfeited and assigned.to the plaintiff. “If the prisoner be only entitled to the rules on his giving bond, the sheriff could have no right to discharge him without a bond. If he discharge him when he has no right to do so, it is an escape, for which the sheriff is responsible; as such an escape is illegal, it can furnish no consideration on which a contract can be supported. The motion must therefore be refused.

Mott, tolcock and Johnson, Justices, concurred.  