Opinion
(December Term, 1845.)
1. Where a debtor has been arrested on a ca. sa. and given bond for his appearance at court under the insolvent debtor's act, and the sureties surrender him and he is ordered into custody, the committitur is in execution, and the sheriff has no power to discharge the debtor out of prison of his own will and without the order of the court.
2. The act of 1777, ch. 118, sec. 11, Rev. Stat., ch. 190, sec. 20, alters the law as it was under the Statute 4 Ed. III., by giving the action of debt for escape against the executor of the sheriff, as well as to the executor of the creditor.
APPEAL from ROCKINGHAM Fall Term, 1845; Dick, J.
No counsel for plaintiff.
Kerr and Morehead for defendant.
This was an action of debt against the sheriff of Rockingham, for the sum of $285 for the escape of one John F. Lane. It was brought originally against the sheriff, and upon his death revived against his administrator. It was tried upon the plea nil debet, and on trial, the plaintiff produced the record of his suit and judgment against Lane in Rockingham County Court; a ca. sa. returned cepi (120) corpus, and a bond with sureties executed for the debtor's appearance to take the benefit of the act for the relief of insolvent debtors. By the record it further appeared that at the return of the ca. sa. the sureties for Lane surrendered him in discharge of themselves in open court, and that on the prayer of the plaintiff he was committed by order of the court into the custody of the sheriff of the county, who, thereupon, took Lane again into actual custody. The plaintiff then proved by a witness that the order was made, and the sheriff took Lane into his custody about noon, and that in the evening of the same day the said lane was going at large.
The defendant then proved that before he let Lane at large one Joseph Washburn, in open court, entered into a recognizance "whereby he acknowledged himself indebted to the plaintiff in the sum of $560, to be void on condition that John F. Lane make his personal appearance at the next term of this court and stand to and abide by the order and judgment of the court."
The defendant thereupon insisted that Lane was not committed to his custody as in execution, and, secondly, that, if he was, he was entitled to be let at large upon the security of Joseph Washburn's recognizance. But the court refused so to instruct the jury, and directed them that if they believed the witness the plaintiff was entitled to a verdict. Verdict and judgment for the plaintiff, and the defendant appealed.
It is very clear that the committitur to the sheriff was in execution, and could be in no other way. The debtor had been already arrested on a ca. sa., and discharged out of custody upon giving bond with sureties. The sureties surrendered him, according to the power given to them in section 9 of the insolvent act; and (121) the question is, In what manner and for what purpose, when the creditor prays him in custody, is he to be deemed in custody? Certainly not in mesne process, for there is none such in the case; and, therefore, he must be in on the execution, and there remain under the order of the court until a full and fair disclosure of his effects, and his discharge upon taking the oath of insolvency after the necessary notice, according to sections 10 and 11 of the act. That seems to be the clear meaning of the statute, and so the Court held in Williams v. Floyd, 27 N.C. 649. It follows that the sheriff had no power to enlarge the debtor out of prison, of his own will and without the order of the court. If, indeed, he might have done it at all he could not in the way he did. The act requires a bond, with good and sufficient sureties, conditioned for the debtor's appearance at the court to which the execution shall be returnable; and in each particular this security is different.
It is to be noted that the act of 1777, ch. 118, sec. 11, alters the law as it was under the statute 4 Edw. III., by giving this action against the executor of the sheriff as well as to the executor of the creditor.
PER CURIAM. No error.
Cited: Veal v. Flake, 32 N.C. 420.