#### STATE *vs.*HUGH SIMPSON.

Where a defendant is ordered into custody upon a conviction, until lie shall pay the fine and costs imposed by the judgment, and is permitted •by the Sheriff to escape, this is no discharge of the judgment.

1,/Case of .HawjuNS -y. Hall, 3ilred. Eq. 2SQ, — -citejl and approved.,)

*81-A Deputy Sheriff, to whom it is alleged, payment of a judgment was made, is a competent witness to disprove the allegation.

(State v. Fulenwidee, 4 Ired. 364; Hawkins v. Wall, S.Ired. Eq. 280, — . cited and approved.);

Appeal .from the Superior Court of Bladen, Fall Term, 1853. His Honor, 'Judge Settle, presiding.

The defendant was brought into Court by virtue of a capias, “to show cause why.be should not pay the costs and fine of a former indictment.” The motion for judgment was resisted upon the ground, that he had been dis- . charged from the same, by having been prayed in custody for the fine and cost, and discharged. The fact as to this point is, that the.defendant was ordered into custody, at a former term of the Court, for the fine and costs upon a conviction, and was permitted by the Sheriff, without the authority or consent of the Solicitor, .to escape.

The defendant further opposed the motion, upon the ■ground, he had paid this judgment; and to make good this >defence, he showed that there was at .one time .a surplus of .money in the hands of the Sheriff, arising from the sale of a negro under an execution in another case, of greater .amount ■than the spin now demanded: to this' it was replied, that the whole of the said surplus had been drawn out of the hands of the Sheriff by the defendant, and one Eitzrandolph, the-Sheriff’s deputy, who made the sale, was offered as a witness to prove this fact. The competency of this witness was objected to upon the ground of interest, but the objection was overruled by his Honor, and the fact being established by him, as alleged by the State, the Court gave judgment against the .defendant, from which he appealed to this Court.

*Attorney General,*for the State.

*McDugald,*for the defendant.

Nash, C. J.

Upon the authority of the case of Hawkins Wall, 3rd Ird. Eq. 280, we concur with his Honor in his *82judgment in this case. There was no payment of the judgment, by operation of law, upon which the defendant was ordered into custody by the Court.

It is well settled, that where a defendant is arrested, upon a *ca sa,*in a civil suit, and is discharged, by the direction, or consent, of the plaintiff, it is in law a discharge of the debt, but where he is discharged by operation of law, as by an insolvent act or act of bankruptcy, or where he dies in prison, or escapes, it is not a discharge of the debt. In the case of Hawkins, a judgment had been obtained against him, by the defendant Wall, upon which a *capias a 'd satis-faciendum*had issued, and under which he was arrested, and gave the Sheriff a bond for his appearance in Court. lie did appear, and surrendered himself in discharge of his bail, and was not prayed into custody. Subsequently, *& fieri facias*issued against Hawkins, to collect the judgment. The bill was filed to obtain an injunction, upon the proof of an agreement alleged to have been made between the plaintiff and the defendant, and also upon the ground, that the plaintiff had been discharged from custody, by the act and consent of the creditor, and that, thereby, the debt was discharged.

In the opinion delivered by the late Chief Justice, the doctrine is fully discussed, and the principles governing this case settled — that where a debtor is in custody, upon final process, and escapes, or surrenders himself in open Court, it is no discharge of the debt — and in the latter case it is op-tionary with the plaintiff, to pray him into custody or not— and if he does not, his rights under the judgment arc not touched — and the opinion further decides, that it is in the power of the Court to order the defendant into custody, and if they did so, it'would be a new imprisonment under that order: we think that case decisive of the one before us, upon that point. The first judgment against the defendant Was not discharged, by his arrest under a *ca sa,*and his escape therefrom, by the act of the ■ Sheriff. The State, by *83its agent, tbe prosecuting officer, did not assent to it. As ¡the judgment was still in force, the Court had a full right to order a new *capias*to issue, and upon the defendant’s being brought into Court under it, there was no error in the judgment rendered, of Avhieh the defendant has a right to complain.

We do not deem it necessary to consider the question of the power of the Sheriff, to retake a prisoner, under final process, who escapes by his permission. It has no application in this case, as he acted under the precept of a Court of competent authority.

The defendant further insists, that the money due upon the judgment had actually been paid to the Sheriff — and he showed, that a negro of his had been sold by one Eitz-randolph, the deputy of the Sheriff, and that the sale raised more money, by $ 188, than was necessary to satisfy the execution, and that the money was still in the Sheriff’s hands. Eitzrandoph was then called in behalf of the State, to proye that he had paid that surplus to the plaintiff himself. The defendant objected to his competency, on the ground, of interest. The objection was overruled. In this we see no error. See York v. Blatt, 5th Ma. & Sel. 71 — and State v. Fulenwider, 4 Ired. 364 — where it is decided, that in an action on a constable’s bond, against his sureties, the constable was a competent witness for the relator.

But further, he had no interest in the proceedings; neither he nor his principal, the Sheriff, was a party to the record, nor can the judgment be. given in evidence against him, in any further suit by the Sheriff.

Judgment affirmed.