Opinion
July Term, 1810.
1. An action cannot be maintained upon a bond given by a person arrested upon a capias, ad satisfaciendum, to keep within the limits of the rules of the prison.
2. Laws 1759, ch. 14, give to such bond the force of a judgment, and authorize the creditor to have execution thereon, upon motion in court.
THE plaintiff having recovered a judgment against Frazier, sued out a capias ad satisfaciendum, upon which Frazier was arrested, and he entered into bond, with Barnett Pulliam his security, for keeping within the rules of the prison. The bond was taken by the sheriff, and by him assigned to the plaintiff in the manner prescribed by the act of 1741, ch. 18, and 1759, ch. 14. The defendant Frazier having gone without the rules of the prison, the plaintiff brought an action on the bond, given by him and Pulliam for his keeping within the rules; and the question in the case was, Whether the action could be sustained.
From Hertford.
Laws 1759, ch. 14, declare, "That bonds given in pursuance of the act of 1741, ch. 18, by any person committed on a capias ad satisfaciendum, shall, by the sheriff taking the same, be assigned to the party at whose instance such person was committed to jail, and shall be returned to the office of the clerk of the court from whence such execution issued, there to be safely kept, and shall have the force of a judgment; and if any person who shall obtain the rules of any prison, upon giving bond and security as aforesaid, shall escape out of the same before he shall have paid the debt, or damages and costs, according to the condition of such bond, it shall be lawful, and full power and authority are hereby given to the court where such bond is lodged, upon motion of the (422) party for whom such execution issued, to award execution against such person and his securities for the debt, or damages and costs, with interest," etc. This act gives to the bond the force of a judgment, and authorizes the party to have execution sued out thereon, upon mere motion. Here the plaintiff has brought an action on the bond as a common deed. He cannot elect to treat it as such; he cannot divest it of the attributes given to it by the act. He must consider it as clothed with the force of a judgment, and take the remedy thereon which the act prescribes. Judgment for the defendants.
Cited: Whitley v. Gaylord, 48 N.C. 287; S. v. Pearson, 100 N.C. 417.