15 N.C. 95 | N.C. | 1833
By a case stated by Seawell, J., who tried the case below, it appeared that on the trial a writ was produced and given in *79 evidence directed to the sheriff of Lincoln, commanding him to arrest the body of Peter Newton if to be found, etc., and him safely keep until heshould cause to be made, the sum of sixty-one dollars and ninety-ninecents, with interest, etc., and that he should have the said moneys besides, etc., before the judge, etc., at the court to be holden, etc. The defendant's counsel objected that this writ was not a capias adsatisfaciendum, but the Judge held it was, and the jury found a verdict accordingly. From the loose and imperfect statement of the pleading contained in this record, the court is unable to ascertain what was the issue of facts submitted to the jury. It appears that a scire facias was sued out against the defendant as bail for Peter Newton, against whom the plaintiff had recovered a judgment; that to this scire facias, the defendant pleaded "that the capias ad satisfaciendum was not directed to the sheriff of Buncombe, which was the proper county to which it should have been directed"; to which plea the plaintiff replied, that "the capias issued to the county of Lincoln, which was the domicile of Peter Newton (the principal), and therefore was the proper county to which it should have been directed," that the defendant rejoined to this replication and thereon issue was taken. With every disposition to make a liberal allowance for the practice which prevails of setting forth in the record the substance of the pleadings instead of inserting them in full, we must require that the substance shall appear. Our duty as prescribed by the Legislature, to inspect the whole record and to render thereon such judgment as the court below ought to have rendered, cannot otherwise be performed. We cannot see upon this record (97) what was the traverse taken by the rejoinder, nor what was the fact found by the verdict, and of course cannot decide what judgment the law requires to be rendered upon such finding.
It is stated, however, that upon the trial of this issue, whatever it might be, a question arose whether a writ issued to the county of Lincoln, and a copy whereof is made a part of the case, was in law a capias adsatisfaciendum, and that the Court directed the jury it was "in law acapias ad satisfaciendum," that the jury found a verdict in favor of the plaintiff accordingly; and that the defendant moved for a new trial of the issue, because of this alleged misdirection. We must presume this question was a material one on the trial of the issue, and have therefore directed our attention to the decision made upon it. *80
Here again, we are met with a difficulty. The case does not point out, or in any manner intimate what are the objections to the supposedcapias, and it being submitted without counsel on either side, we have no means of discovering the objections, but by examining the copy of the capias set forth. The writ purports to have issued from the Superior Court of Wilkes to the sheriff of Lincoln, and if the copy beexact, the writ is not under the seal of the Court. We should probably defer our judgment, if it were to rest upon this objection, and endeavor by some proper process to get the original writ before us, or otherwise become certain that this apparent defect actually existed, because it is possible that the clerk may have neglected in his copy, to show forth the seal. If in truth the writ to Lincoln be without seal, it is not in law a writ issued by the Superior Court of Wilkes. All writs issued by a Court in this State not under the seal of the Court, except when they are directed to the officers of the county in which the Court is held, are absolutely null. The common law requires that the seal of a Court of Record shall be affixed to all its writs, and our Legislature has dispensed with this essential from of authentication only in the cases where the writ is confined within (98) the county from the Court of which it issues. Act 1797, Rev., c. 474. This point was conclusively settled inBank v. Seawell,
But there is another objection which cannot be removed. The writ ofcapias ad satisfaciendum is one, the forms of which have been settled from the time of the earliest annals of judicial history. It commands the officer to take the body of him against whom it is directed, and him safely keep, so as to have his body before the Court to satisfy the plaintiff, the debt recovered. The forms of a writ, the execution of which has so important an operation as to deprive a citizen of his liberty, are so many securities for the liberty of all the citizens. No writ ought to be considered as a capias ad satisfaciendum which plainly disregards them. The sheriff to whom a writ is directed, is a ministerial officer, whose duty it is to obey the requisitions of the mandate. It is necessary that this mandate should correspond with that which the law prescribes, for the sheriff ordinarily cannot look beyond it. If it proceed from a Court having jurisdiction, he is protected or punished, in general, accordingly as he obeys or disobeys it. When a writ issues in the settled from, there is no difficulty in knowing his duty, for that also has been perfectly settled by law. But when it *81 is expressed in terms unknown to the law, a conflict is presented between the language of the mandate on one side, and the requirements of the law on the other. Perhaps he might be protected in yielding obedience to the former, and probably the the Court would not punish him for showing greater respect to the latter. However this may be, and whatever might be the remedy of the citizen, if the sheriff obeyed the strange writ, the law will not sanction such a writ, because it is a strange writ, which it does not know. The writ which issued in this case commands the sheriff not to "take the body of Peter Newton, and him safely keep, so that you may have his body before our Superior Court of Wilkes, to be holden, etc., then and (99) there to satisfy John Finley, etc.," but, "to arrest the body of Peter Newton, and him safely keep until you cause to be made the sum of sixty-one dollars, etc., which John Finley recovered, etc., and have you the said moneys before our Court, etc., etc." It is a singular species of distringas, against the body of Newton, by means of which the officer is, at all events, to squeeze the money out of him, and have that money forthcoming at the next Court. In our opinion, it is not our well known capias ad satisfaciendum, but a stranger to our laws.
This is not a case in which a capias has issued irregularly, as upon a dormant judgment, not revived by scire facias, which irregularity may be waived or not by the principal, and to which the bail cannot object, but it is one in which the writ given in evidence as a capias, is not in law acapias, and where the bail has a right to demand a proper capias.
The judgment of the Court below, is to be reversed, and the verdict set aside, and the cause remanded to the Superior Court of Wilkes for further proceedings. Should it again come before us, we hope that it will be presented in such a shape as to enable us to decide it finally, and according to law.
PER CURIAM. Judgment reversed.
Cited: Freeman v. Lewis,
