
    Cagle, et. als. vs. State.
    The circuit court has the power to commit persons convictedof misdemeanors to the custody of the sheriff, till the fines and costs are secured, and the sheriff under such judgment has the right to take a bond under the act of 1824, ch. 17, passed for the benefit of insolvents. This power of the court is not affected by the act of 1842, ch. 3, repealing the capias ad satisfaciendum.
    
    Cagle was convicted of several misdemeanors in the criminal court of Davidson county, at the June term, 1842. He was ordered by the court into the custody of the sheriff, till he secured the fine and costs. He was held in custody till he gave a bond with a surety for the sum of two hundred and fifty dollars-, with a condition that it should be void if Cagle should appear at the next term of the court, on the 1st Monday in September next thereafter, and should then and there pay said “debt and costs,” or make a surrender of his property, or take the'benefit of the act passed for the benefit of insolvent debtors.
    The defendant appeared and exhibited a deed of trust which covered all his effects, and offered to take the oath of an insolvent debtor. The presiding Judge, Turner, regarding the deed of trust as fraudulent, refused to permit him to take the oath, and rendered a judgment against him and his surety for the amount of the several fines and costs.
    From this judgment defendant and surety appealed.
    
      Gorin, for plaintiffs in error.
    
      He cited the act'of 1842, ch. 3, which provides that,-“all laws now in force in this State authorizing the issuance'of any ca. sa. commonly called art execution against the body of a debtor, shall be repealed, and' contended that that act embraced this' case, rendered the order made and the bond taken illegal and void,- and entitled th’e defendant and his surety to a discharge..
    
      Attorney General, for the State.
    ■1st. Had the court power to enter up a judgment against the defendant that he be fined, and that he be imprisoned till he secured the fine and costs?
    Judgments are either fixed and invariable, or they are ^variable and discretionary, as in most misdemeanors. 2 Hawkins, 631, sec. 19. Courts can finé or imprison, or fine and imprison; Bacon, title Fines. In cases of nuisance they may assess the fine, subject to be remitted at a succeeding term in the event the nuisance be abated, or increased in the event it be not abated; Bacon, vol. 3, 631; or may in, case of assault and battery, order the fine to be remitted in the event the defendant pays costs and damages to the injured party; Ch. C. C. vol. 1, p. 809; Hawkins Book 2, ch, 25. So they may imprison, tó be remitted -on payment of fine and costs, or in other words, may fine and order the party tobe imprisoned till the fine and costs are paid or secured to be paid. 2 Yerger, 245; 5 Yerger. Fines, says Bacon, should be entered severally, because, says this authority, one might be imprisoned for the fine of another; 3 Bac. 624. Fines shall not be excessive, says same authority, page 632, because it being a part of the judgment at common law “quod capiatur,” •or that -he be imprisoned till he paid the fine and costs, an excessive fine might amount to perpetual imprisonment: qui non habet in crumena luat in corpore; Bac. vol. 3, 615; Tomlin, 797; 4 Black. 304.
    Origin ally a quod, capiatur judgment was entered in all cases where a judgment was entered either in civil or criminal cases, and the defendant was fined in criminal cases for .his offence, and in civil cases for his delay of justice; in both class of- cases the fines going to the King. This course, of procedure- continued as to civil cases till .the enactment of the. statute- of 5 William and Mary.
    When the defendant was present in court he was ordered into custody, to be held till the fine and costs' were paid or secured, Wh.en absent, as he might well be' in civil cases, or in misdemeanors when judgment was entered against him.for fine and costs only, the judgments were executed by the seizure of the person of -the defendant by the writ of capias pro fine. ■
    
    This writ: was framed for the execution of a particular class of judgments entered up at common law, in. favor of the King. It is a different writ from'the capias ad satisfa-ciendum, and treated under different heads'in the elementary authors. 1 Tomlin, 288. “When judgment is given that defendant ca-piatur a capias pro fine goes,” if the defendant does not appear and pay the fine. — Comyn. Dig. yol. 4, 224,
    The capias ad satisfaciendum is a writ used to enforce the collection of debt or damages due individuals by judgment. The capias pro fine has existed at all times as a mode of enforcing punishment, and as a legitimate and necessary result of the- power to imprison the offender and to make that imprisonment absolute or conditional. That a fine is a punishment and not a debt is- well settled; see 1st Chitty C. L.’ 811; 1 Cowen, 150; 2 M. and S. 200; 4 B. 214; 13 East, 190..- The repeal therefore of “all laws authorizing the issuance of a capias ad satisfaciendum,. commonly called an execution against the body of a debtor,” does not touch the power of the court to imprison by a capiatur judgment, and to enforce that power'in the absence of the defendant by the issuance of-a capias pro fine, a process sanctioned by immemorial usage for the execution and enforcement of that class of judgments.
    . These principles being established,- it will hardly be contended on behalf of defendant that the State must sternly and rigidly exact the instantaneous payment of the fine and costs, and imprison all defendants that do not make payment forthwith. It will hardly be contended that the State may not extend to the defendant the lenity of giving security foi the payment of the fine and costs at- a future term. This has been done from the earliest stages of the law, and is sanctioned by the uniform practice of the court. Comyn, vol. 4, p. 224, says: “where judgment. quod capiatur is given in the absence of defendant, a capias pro fine issu.es, and if he be taken and give security, a supersedeas goes.” Having this power to extend indulgence to the defendant, the court, by analogy, have adopted the practice of requiring a bond similar to that given by insolvent debtors, as one dictated by humanity, and to guard against the perpetual imprisonment of poor offenders.,
    He therefore contended that there was no error in the judgment of the court, and that it ought to be affirmed.
   Per curiam.

Let the judgment be affirmed.  