delivered the opinion of the court.

Isaiah Bell was convicted in the Circuit Court of Chickasaw County of an assault with intent to kill. He prosecuted an appeal from the judgment, and gave an appearance-bond with W. F. Tucker and Alex. Moore as sureties. Failing to appear in accordance with the condition of his bond, the judgment was affirmed; and a judgment nisi was taken against him and the sureties on his bond, and a scire facias was issued against them to appear and show cause why the judgment should not be made final. To this the sureties now plead that no supersedeas-bond was executed by Bell, and no affidavit was made by him of his inability to give one. To this plea the attorney-general demurs.

If the principal was, in fact,- never discharged from custody because of the appearance-bond, no judgment can be rendered against the sureties. But if this was the fact, it is incumbent on the sureties to plead and prove it, for it is affirmative matter in discharge of their obligation. It is not sufficient for them to plead other facts from which it may be inferred. United States v. Bradley, 10 Pet. 343.

It may be true that the defendant Bell did not execute a bond to supersede the judgment; but if he did not, and was nevertheless discharged from custody upon the appearance-bond, he ought to have appeared in conformity with its obligation. If, because of hig failure to give the supersedeas-bond, or to make the oath required by law of his inability to do so, he was retained in custody notwithstanding the execution of the appearance-bond, and, not being at liberty, could not *825appear in discharge of his obligation, the facts ought to have been pleaded.

The demurrer admits the facts set up in the plea, but it does not admit others which may be inferred from those admitted. The facts pleaded are not in themselves sufficient to bar the recovery sought. The demurrer will therefore be sustained, and as there is in the record a written agreement that no further pleading will be filed, judgment final will be entered.