
    DAVID L. WRIGHT, Adm’r. &c. vs. SAMUEL ROBERTS, Adm’r. &c.
    Where a debtor has been arrested on a ca. sa. and given bond for his appearance at Court under the insolvent debtors’ Act, and the sureties surrender him and he is ordered into custody, the commitlitur 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.
    The act of 1777, ch. 118, sec. 11, Rev. St. eh. 190, sec. 20, alters the law, as it was under the Statute 4 Ed. 3, by giving the action of debt for escape against the executor of the Sheriff, as well as to the executor of the creditor. The case of Williams v. Floyd, 5 Ired. 649, cited and approved.
    Appeal from the Superior Court of Law of Rocking-ham County, at the Fall Term, 4845, his Honor Judge Dioic presiding.
    This was an action of debt against the Sheriff of Rock-ingham, 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 of nil debet; and, on the trial, the plaintiff produced the record of his suit and judgment against Lane in Rockingham County Court; a ca. sa. returned cepi 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 witnesses, the plaintiff was entitled to a verdict. Verdict and judgment for the plaintiff, and the defendant appealed.
    No counsel for the plaintiff.
    
      Kerr and Morehead, for the defendant.
   RuffiN, C. J.

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 the 9th section of the insolvent act; and 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 the 10th and 11th sections of the act. That seems to be the clear meaning of the statute, and so the Court held in Williams v. Floyd, 5 Ired. 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, c. 118, s. 11, alters the law, as it was under the statute, 4 Edw.. 3, by giving this action against the executor of the Sheriff, as well as to the executor of the creditor.

Per Curiam. Judgment affirmed.  