
    Sharp vs. Nelson.
    A capias ad satisfaciendum, issued from a justice in the following form:, “⅜ any lawful officer to execute and return: you are hereby commanded to take the body of Robert Nelson> and him safely to keep, till he render to you the sum of thirty-five dollars, to satisfy a judgment» which Maxwell Sharp obtained before me for debt, with interest from the íst day of January, 1834, fogethez with all lawful cost, and have you those moneys ready to render unto those entitled to receive them agreeable to law. Giver)»” &c: Held, that this ivas sufficient* and that the ca. sa. need not commaiid the officer to have the efend-ant before the justice on a day to be named in the writ.
    Upon the issuing of a ca. sa., the party executed á bond, with the following1 Condition: “The 'condition of the above obligation is such, that whereas the said Maxwell Sharp .'has ‘caused a ca. sa. to be issued against the said Robert Nelson forthe sumof thirty-five dollars, and costs 0/ suit, returnable agreeable to law, which said eft. 'sa. has this day been executed on the said Robert Nelson? by Samuel D. Buck, a constable for said county: now, if the said Robert Nelsonf* should make his personal appearance before the next court of pleas and quarter sessions, to be holder» for the County of Montgomery at the court house in' Clarksville, on the third Monday of July next, and then and there make payment of the said moneys called for in the said execution, or take the oath prescribed by law for insolvent debtors, or make surrender of his property agreeable to the acts of the General Assembly in such case made and provided, then the above obligation to be void. But should the said Robert Nelson fail to appear according to the leno^ of this bond, the above obligation to be in full force and effect”: Held, that this condition substantially complied with the requirements of the acts of 1824 and 1825, requiring the bond to be taken ¶ apd that judgment might b$ rendered egalpst the principal and surety therein,
    The plaintiff in error recovered a judgment against the defendant, Nelson, before a magistrate, for thirty-five dollars, upon which, the following capias ad satisfaciendum issued, and was executed on Nelson on the 3d July, 1834: “To any lawful officer to execute and return: you are hereby commanded to take the body of Robert Nelson, and him safely keep, till he render to you the sum of thirty-five dollars, to satisfy a judgment which Maxwell Sharp obtained before me for debt, with interest from the 1st day of January, 1834, together with all lawful cost; and have you those moneys ready to render unto those entitled to receive them', agreeable to law. Given,” &c.
    At the time that this' ca. sa. was executed upon Nelson, he executed to the officer a bond with W. B. Johnson, as his surety, conditioned as follows: “The condition of the above obligation is such, that whereas the said Maxwell Sharp has caused a ca. sa. to be issued against the said B.obert Nel- „ , . „ , _ ° , - son-, for the sum 01 thirty-five dollars and costs ol suit, able agreeable to law, which said ca. sa. has this day been executed on the said-Robert Nelson, by Samuel D. Buck, a 'constable for said county: now, if the said Robert Nelson should make his personal appearance before the next court of pleas and quarter sessions, to be holden for the county of Montgomery, at the court house in Clarksville, on the third Monday of July next, and then and there make payment of the said moneys called for in the said execution, or take the oath ¡irescribed by law for insolvent debtors, or make surrender of his property agreeable to the acts of the General Assembly in such case made and provided, then the above obligation to be void. But should the said Robert Nelson fail to appear according to the tenor of this bond, the above obligation to be in full force and effect.”
    Nelson failed to appear at the court, and comply with the condition of the bond; whereupon, the plaintiff moved the court for a judgment thereon against the said Nelson, and his surety, Johnson. At the same time the defendant moved to quash the ca. sa. The court refused to render judgment for plaintiff, and gave judgment that the ca. sa. and the proceedings under it be quashed, and for nothing held. From this judgment, the plaintiff appealed to the circuit court, yrhere it was affirmed; from which judmept .of affirmance, he appealed ⅛ error to this court.
    
      G. 8. ⅜ J. 8. Yerger, for plaintiff in error.
    
      Boyd, for defendant in error.
   Reese J.

delivered the opinion of the court.

We entertain but little doubt that the judgment of the circuit court, in this case, was controlled by the authority of the ease of Buford vs. Crook, 6 Yer. 524. The case is very brief. The judge who gave the opinion of the court in that casé, says: “the writ of capias ad satisfaciendum is not in form; the command should have been, to have him before the justice who issued the writ, on a day therein appointed, to satisfy the said plaintiff in the sum, &e.” We feel anxious to adhere to decisions once made; but we are unable to approve either the form or sabstance' of the course above indicated. “The writ,” says the case, “must command the officer to have the defendant before him, the justice, on a day to be named in the writ.” By virtue of what statute, principle of law, or practice, is this required? Why appear before the justice? What will the justice do with the defendant? If he pay not the money, the ca. sa. being discharged of its office, shall a mittimus jhen. be written? When shall the justice appoint the return of the writ,"and of the defendant before him? at a day near or remote? If near, perhaps the process may not be served before it must be returned; if remote, where will the defendant be in the meantime? In jail, or in the hands of the officer; or upon bail, or at large? The case adds, “this form secures to the defendant the benefit conferred by the act of 1823, c. 12, § 7, authorizing a release of the body by a surrender of goods as therein specified.” The act referred to, is the endorsement law of 1823; no part of which, it is believed, has at any time been attempted to be enforced by any judicial or ministerial officer within the State. This section (the 6th) which provides for the delivery of property in discharge of the body of defendant, directs that the property so surrendered, shall be disposed of as provided in another section, (the 2d or 3d) that is, that it shall be valued, and if it should not sell for three-fourths of that valuation, it shall be returned to defendant. We see nothing in the entire act, or in that section of it, sufficient to induce us to adopt the course of proceeding mentioned in the case of Buford vs. Crook. We feel satisfied that the case cannot have been very fully discussed or attentively considered by the court, and we are unable to yield to its authority. The capias ad satisfaciendum in this case, is in the usual form of those issued by justices of the peace, and the bond taken for the appearance of the defendant at the county court, is in conformity, substantially, with the requirements of the acts of 1824- and 1825, on that subject. Let the judgment of the circuit court be reversed, and this court, proceeding to render such judgment as the hrcuit court ought to have rendered, let. the plaintiff have his motion.

Judgment reversed.  