
    McKenzie, Cadow & Co. vs. Edwin Barnes, late sheriff.
    
      Practice — Commission to examine Witnesses — Evidence— Bail — Ca. Sa. — Mesne Process — Sheriff—Escape.
    Where there is no suspicion of unfairness, it is a sufficient compliance ■with the Tule of Court requiring Commissioners to take testimony, to write their names across the seals, for the Commissioners to write their names across the face of the envelope, the seals being on the other side.
    If defendant be rendered by his bail after judgment, and there be no ca. sa. in the sheriffs hands, or none under which he can act, the defendant is in custody under mesne process, just as if he had never given bail.
    The recital in a prisoner’s petition for his discharge, under the Insolvent Debtor’s Act, does not bind the sheriff; he may show the contrary in an action against him for an escape.
    BEFORE WARDLAW, J„ AT KERSHAW, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ Action on the case against the defendant, late sheriff of Kershaw District, for the escape of Enoch Tryon, debtor of the plaintiffs.
    “In various counts, the plaintiffs charged the sheriff’s failure to arrest E. Tryon — the escape of E. Tryon after his arrest under ca. sa., and his escape after he had been rendered by his bail.
    
      “They?leas were: 1. The general issue. 2. That from the lodgment of the ca. sa., until its return, E. Tryon was not to be found in the District, and so was not arrested under ca.sa. 3. That T. Baskin, former sheriff, by license of the plaintiff, took a bond, in nature of a bail bond, in lieu of arresting-E. Tryon under the order for bail, and so the writ of capias ad respondendum was returned.
    
      “The replications were : 1. Similiter. 2. That the ca. sa., was of active energy after the entry of return on it, and remained in the hands of the defendant at the time E. Tryon was rendered by his bail. 3. That Tho. Baskin, sheriff, did arrest E. Tryon, and the arrest and bail bond were good and valid in law.
    “ There were traverses and issues under the replications to the second and third pleas.
    “ Prom papers adduced, and' some oral testimony, it appeared that, in the suit of McKenzie, Cadow & Co., (assumpsit on note of three thousand nine hundred and four dollars and eleven cents,) the writ of capias ad resp., was lodged in the sheriff’s office of Kershaw when T. Baskin was sheriff, March 18, 1854. Service was accepted and the writ returned to Spring Term, 1854.
    
      “ Enoch Tryon was absent from the District all the time from July 1, till Aug. 1, 1854.
    “ A special order for bail pending suit was made, entered and returned July 12, 1854, the return of T. Baskin, sheriff, being, “ I have the bond of defendant, with S. B. Emmons and D. C. Tryon, sureties, according to this order.”
    “ 1854, Oct. 16, E. Tryon, (during the sitting of Lancaster Court, at which Mr. Caston, plaintiff’s attorney, in the case of McK. C. & Co. vs. E. T., was attending,) made sale, at auction, of two negroes, his house and lot, furniture, wagons, mules, &c., all his visible property in this State, that remained after nine negroes, that in the Spring of 1854, he had sold to his factor. At this sale, in October, D. Tryon, a brother of E. Tryon, was almost the sole purchaser; payment was made by his notes, and these were transferred to another brother residing in California, in payment of E. T.’s indebtedness to him, as the brothers testified.
    “ At Fall Term, 1854, (Oct. 30,) upon default of appearance, the case of McK. C. & Co. vs. E. T., was referred to the clerk, and damages were assessed at four thousand three hundred and fifty-eight dollars and eighty-four cents, besides costs ; judgment was entered Nov. 6, 1854 ; fi.fa. issued the same day, and lodged with Baskin, then sheriff, who continued in office until February, 1855.
    “ 1855, March 5. Ga. sa. lodged with this defendant, E. Barnes, then sheriff.
    “ On the writ of ca. sa. adduced by the plaintiffs, are the memorandum, signed by this defendant, of entry in his office, March 5, 1855, and what professes to be a return in these words: “ The defendant cannot be found within my district. E. Barnes, sheriff, K. D., Sept. 20,1855,” and an indorsement in the handwriting of Mr. Oaston, in these words: “ AY ait orders. Oaston, P. Attorney.”
    “ Process against the bail, S. B. Emmons and D. 0. Tryon, was had, returnable to Fall Term, 1855.
    
      “ Enoch Tryon having been absent from the State all the time between Fall Term, 1854, and the 27th day of October, 1855, (the Saturday preceding Fall Term, 1855,) returned on the last mentioned day.
    “ At Fall Term, 1855, an order was obtained by Mr. Ker^ shaw, attorney for D. 0. Tryon and S. B. Emmons, (entitled of the case of McK. 0. & Oo. vs. E. T., and of various other cases against Enoch Tryon,) granting to them, “leave to surrender E. Tryon, their principal, in the bail bonds given in the above cases, in discharge of their liabilities as bail,” and ordering that “ upon their doing so, during the present term, the suits instituted against the said bail be discontinued, on payment of costs.”
    “Nov. 3,1855, the last day of the term, E. Tryon was rendered in jail by S. B. Emmons and D. C. Tryon, to this defendant, sheriff.
    “Dec. 12, 1855, Enoch Tryon filed his petition and schedule to obtain the benefit of the Insolvent Debtors’ Act. In the petition, he set forth that he was confined under writs of capias ad satisfaciendum — satisfaciendum being interlined in lien of respondendum struck out.
    
      “A suggestion, resisting tbe discharge of E. T., was filed by these plaintiffs (McK., C. & Co.,) and by S. S. Farrar and Brothers, during the Spring Term, 1856, (March 31). E. T. pleaded to the suggestion, traversing its allegations, and upon trial had at that Term, a verdict against the said E. T., was rendered on tbe third and eighth specifications, to wit: 3d. That certain bonds, notes, moneys, &c., were not inserted in the schedule. 8th. That E. T. had made fraudulent sales and assignments of certain property.
    “In May, 1856, the appeal of E. Tryon was dismissed in the Court of Appeals at Columbia.
    “July 2, 1856, Enoch Tryon who had remained in jail from his render Nov. 3, 1855, escaped.
    “ Soon afterwards he was in Connecticut, whence he had removed to South Carolina in 1841, and where his wife and children had been from October, 1854. There he remained until the spring of 1857, when he went to California, where he now is. *
    “1856, this suit was commenced.
    “ 1858, Mr. Caston died.
    “ The bail bond was not adduced. Tho. Baskin, late sheriff testified that he had never, arrested, nor seen E. Tryon, after the order for bail was lodged, but that Mr. Caston having obtained from him some time previous a blank bail bond, handed to him with the order, the bond filled up and signed, saying : “ the sureties live out of the District, but I know them; take the bond, and there shall be no afterclap.”
    “ Concerning the circumstances of E. Tryon’s escape, the following summary of the testimony may suffice:
    “ The jail is in a remote and unfrequented part of Camden ; some rooms in it have been set apart for debtors, and some others, called cells, for felons.,
    “ The jailor, appointed by the defendant, was W. Gr. Moore, who was also deputy sheriff, and lived in the jail with his wife and her sister, Miss Bronson, now Mrs. Pigues. The defendant’s home was ten miles off in the country — he usually went to it Saturday afternoon, and stayed until Monday. At other times he ate and slept in the jail. Generally when Moore was absent serving writs, the defendant was in the jail, especially of nights, but not always; and when, as occasionally occurred, both were away, one or both of the women, with the aid of a negro, did the duties of jailor.
    “Duringthe defendant’s sheriffalty, there had been escapes from the jail, to wit: one Holliman, a debtor, who broke a hole through the wall at one window of the room, from another window of which same room afterwards, as hereinafter mentioned, E. Tryon escaped; one Bradly, a convicted felon, who broke the locks of his cell, and the iron door of an entry, and coming to the door at the foot of the lower staircase, knocked; and when, upon the supposition that the knocking was by a negro boy, that had gone up on some ordinary service, the door was opened, rushed out, with Miss Bronson clinging to him, until his coat was left in her hands; andarunaway slave who, after E. Tryon’s escape, broke several locks, and having got into the room from which E. T. escaped, went through the hole, that had not yet been repaired.
    “Before trial had upon the suggestion aforementioned, Sutherland, a builder, who visited the jail, warned the Sheriff to be careful of E. Tryon, if the verdict should be against him, saying: ‘before trial, you could not kick him out.’ Before trial also, Nettles, who had once been Sheriff, told defendant that the jailor was negligent in allowing too much liberty to E. Tryon, and warned him of the serious consequences of an escape. Immediately' after the verdict was rendered against E. Tryon, Mr. Gaston, in emphatic language, urged the defendant to vigilance and caution in keeping him. Shortly before the escape, after the dismissal of E. Tryon’s appeal, the defendant, in conversation with Tho. Baskin, former sheriff, said: ! Mr. Caston has told me that E. Tryon’s brother Augustus has come, and will probably try to help E. T. out of jail, and Mr. Oaston has cautioned me that if E. T. gets out, he will hold me liable. What do you think, have I a right to put a debtor in a felon’s room?’ Baskin answered, ‘ Sure bind, sure find. If you see indications of an intention to escape, put him in the cell and keep him there.’
    “Before the trial under the suggestion, E. T. slept up stairs, but came down at his pleasure, ate at the jailor’s table, and was treated as a guest, except that he kept within doors. He supped below the evening of the day when the verdict was rendered against him; but then the defendant requested him to keep his room above stairs, and he was never after-wards seen below, nor free from the lock at the foot of the stairs. His room was the northern one of two in the eastern front, on the second story. Immediately below it was the bed-room of the jailor, and opposite to that, across an entry, the chamber of Miss Bronson.
    “ Augustus Tryon, who had been in California after having lived some years about Camden, came about the 20th of June, 1856, to the house of D. C. Tryon, who lived seven miles above Camden. These two brothers had several times visited E. T. in jail, and were with him in his room on Tuesday, July 1st. They came out, bringing with them some merchant’s account books, which they took to Mr. Kershaw’s office, and on their way out they met defendant, and talked with him. That night Moore, the jailor, and Miss Bronson, each with a light, took supper to all of the prisoners, and found nothing unusual in the appearance of E. T. or of his room.
    “The defendant, who had a daughter living in Camden, went out after supper, and did not return. The jailor and his wife retired early; Miss Bronson sat in the entry sewing until 10 o’clock or afterwards, and then went to her room. There had been rain in the afternoon, and the night was dark and windy, with occasional showers. Moore, the jailor, rose about one or two o’clock, to prevent the rain from blowing in at a window, and found a blanket hanging from the window above. Alarm was given, and it was found that E. Tryon was gone. Some tracks, with the toes turned toward the wall, were seen below the window; in his room, a hole had been made at a lower corner of the window from which the blanket hung, and the bricks which had been taken from it were put on the bed, and part in a champagne basket, with a blanket underneath them.
    “Next morning at 9-J- o’clock, E. Tryon and his brother Augustus took the cars going North on the Wilmington and Manchester Railroad, at the Lynchburg depot, which is about thirty-seven miles from Camden. They soon passed out of this State, and have not been in it since. They met the night before at McRae’s old mill, a mile from Camden, and travelled to Lynchburg in a buggy — one Dabney riding ahead with a torch. Augustus and Dabney had left D. 0. Tryon’s about dush, and taken a by-way to the old mill. Dabney said that E. Tryon came to them- at the old mill at 8J- o’clock, and he professed to speak with certainty; but either he or Miss Bronson must have erred as to hours.
    
      “ There was no testimony concerning any attempt to recapture. After a release to Moore, the jailor, Mrs. Moore was examined, as were Dabney and Mrs. Pigues; but Moore himself was not questioned concerning the escape, although he was in Court, and in the course of the reply, was adduced by the plaintiff to show the time of the render made of E. T. by his bail.
    “ Sutherland, the builder, repaired .the hole from which, as alleged, E. Tryon had escaped. He testified that the window frame had been held only by a wall of one brick’s thickness, and that the mortar was so bad, that with a knife a man might have easily in half an hour, taken out bricks and forced in the frame, so as to pass through — and all without noise. He spoke also of the bad arrangement of tbe fastenings about tbe cells, which allowed a hand from the inside to reach the locks; and of various improvements which he has since made.
    “There was a tiresome deal of testimony on both sides, Concerning the pecuniary ability of Enoch Tryon at the time of the escape. The grounds of appeal, with consideration for which I am thankful, have been so taken as not to require a report of this. It all went to the jury without comment from me besides naked instructions on points of law, and admonitions concerning the province and responsibility of the jury as to facts. It must now be taken as established, not merely that E. Tryon was insolvent, but that he had no power to make any assignment which would have been valuable to the plaintiffs.
    “Part of .this testimony, on the side of the defendant, consisted of depositions taken under the Commissions mentioned in the first ground of appeal. Objections made under the 95th Rule of Court to the form in which those Commissions appeared, after having been returned by mail, were overruled. They were sealed with wax, and were directed to the Clerk; upon the envelopes were written the names of the Commissioners cross-wise; the proper postmarks were visible, and upon one (perhaps each) was a certificate of one of the Commissioners that he had deposited it in the post-office; but the names were not written across the wax, because they could not have been.
    “ The leading question in the case was whether E. Tryon, after having been rendered by his bail, was detained by the sheriff by virtue of a ca. sa., or only by virtue of the original order for bail, just in the latter case as if he had been arrested under the order, and had never given bail. This ' question involved the important difference which by the 31st, 32d and 33d sections of the Sheriff’s Act of 1839, (11 Stat. 31,) is made between the extent of the sheriff’s liability for a negligent escape of the prisoner confined on final process, and the extent of his liability for such escape of a prisoner confined on mesne process. As I thought, the question was resolved into this — whether at any time between the render and the escape, the sheriff had authority to have taken the body of E. Tryon, if he had been at large, for satisfaction of the plaintiffs’ judgment against him; and this again was equivalent to the inquiry, whether Mi’. Caston, or other person having control of the ca. sa., once sued out by the plaintiffs, had before the render withdrawn it from the sheriff, and never afterwards before the escape re-lodged it, or had before the render ordered a stay of its mandate, and not countermanded the order. So far as this inquiry presented matter of law for my decision, my opinion was expressed in favor of the defendant’s views; but under the pleadings, and a cautious unwillingness to decide disputed facts, I directed the jury to ascertain from the circumstances the truth as to the withdrawal of the ca. sa. by Mr. Caston, and as to the order to wait given by him — the result of the finding in either way being explained according to what I have said above.
    “ I was of opinion that under the Act of 1847, (11 Stat. 433, sect. 2,)-a sheriff who has wholly failed to make execution of final process, is not bound to make, at every term during the continuance of the active energy of such process, a return of either the process itself, or of a written statement showing his failure, with the reasons thereof: but that under this Act, connected with the 56th sect, of the Sheriff’s Act of 1839, (11 Stat. 37,) and with the 3d sect, of the Act of 1827, (6 Stat. 325,) any person having a right to control final process might, at any time, withdraw the process from the sheriff, and require the sheriff to make in writing a statement of his failure to execute it, with the reasons thereof, if there should have been failure; that such statement made upon the process itself is regarded by these Acts as a return, and of this kind was the return of non est inventus, made by the defendant September 20, 1855, if it was made at the request of Mr. Gaston, and the process then withdrawn; that, as I inclined to think, this return of a ca. sa., which had remained in the sheriff’s office more than fifteen days preceding the Spring Term of 1855, and all that term would, by relation to that term, have sufficed to fix the bail and authorize proceedings against them; but that this was immaterial, for at all events the return by lapse of time became a good return for Pall Term, 1855.
    “ I did not speak of the oath to the truth of the return, taken by the sheriff before the clerk as conclusive, but I considered -it as an important circumstance to show that the process was actually withdrawn from the sheriff; the onus of showing the withdrawal before the render, I placed upon the defendant; that of showing the relodgment if such withdrawal had been made, was thrown upon the plaintiffs: in like manner the onus of showing the order to wait before render was thrown upon the defendant; that of showing a subsequent countermand of the order upon the plaintiffs.
    
      “ If Enoch Tryon, before filing his petition for the benefit of the Insolvent Debtors’ Act, was confined under mesne process only, I did not conceive that that petition, or anything in it, could of itself charge him in execution, and I held that the defendant was not concluded by anything therein stated.
    
      “ The defendant, upon the supposition that the plaintiffs had not shown that Enoch Tryon was ever charged in execution, insisted that his confinement had never been under any legal process, because he had never been arrested under the order for bail, and what was called the bail bond was not such, but was an instrument which gave no privileges to the bail, nor any right of detention to the sheriff: the sheriff had by mistake exercised power, and Enoch Tryon had by mistake submitted. As to this, I held that Enoch Tryon had been estopped by his waivers and admissions, from denying tbe validity of tbe bail bond, and that this defendant could not question the regularity of the proceedings, whose defects had been cured by Enoch Tryon’s assent.
    “ Concerning the escape, I instructed the jury that every escape from a sheriff of one lawfully imprisoned, must be either voluntary or negligent; none was accidental and blameless:
    “That the insufficiency of the jail formed no excuse: that the sheriff was answerable civiliter for the acts of the jailor as for his own:
    “That an escape having been shown, the circumstances that would show it to have been not voluntary, must come from the sheriff:
    “ That gross negligence, by the evidence which it afforded of intention, was equivalent to. volition ; and in proportion to the degree of negligence should be the damages, even in cases where the escape was not by a high degree made voluntary :
    
      “ That if the prisoner should be found to have been confined on mesne process only, and the escape should be found to have been without actual fault on the part of the sheriff or his agent; merely negligent in a technical sense, and in the lowest degree, still the plaintiffs were entitled to remuneration for anything that they had lost thereby; and in no case of escape, shown, could the verdict be for the defendant, or for a less sum in favor of the plaintiff than the amount sufficient to carry costs. The jury were left to draw their own conclusions from the testimony and circumstances that related to the manner of this escape.
    “The verdict was for the plaintiffs, twelve dollars and twenty-five cents.”
    The plaintiffs appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the commission containing the testimony of Sarah Tryon, George W. Harris, Joseph Taylor, and Alvin Boberts, and the commission containing the testimony of Augustus Tryon, were not returned in the mode prescribed by law.
    2. Because the facts proved that Enoch Tryon was charged in execution, and his Honor should so have said to the jury, instead of stating to the jury as matter of law, that he was not so charged; and stating to them his opinion that as matter of fact he was not.
    3. Because his Honor should have instructed the jury that the return on the ca. sa. was void, inoperative, and in fac't no return.
    4. Because his Honor charged that the statement in the petition of Enoch Tryon for the benefit of the' Insolvent Debtors’ Act, was no evidence against defendant that he had been arrested under ca. sa.
    
    
      5. Because his Honor charged that the sheriff is not required by law to make a return to an execution at every term during its active energy.
    6. Because his Honor charged that the return proved before the clerk, was conclusive evidence that the ca. sa. was left with the clerk, and the onus was on the plaintiff to show that it was relodged.
    7. That the facts proved the conduct of the sheriff, in reference to the safe-keeping of Enoch Tryon and his escape,'to be not only negligent, but of a character from which the jury should have presumed a voluntary escape.
    8. Because the verdict of the jury was against the law and evidence.
    
      
      Moses, De Pass, for appellant,
    cited on first ground 95th Buie of Court; 2 McC. 157; 1 Strob. 138; 10 Bich. 214. As to returns of executions. Act of 1839, 56; Act of 1847, 6 Stat. 433. On the effect and force of ca. sa., and the return on ca. sa. Ancrum vs. Sloan, 1 Bich. 421; Robinson & Qilfillin vs. Shannon, 2 Strob. 419; Allen on Sheriff, 207; 9 Sgt. & B. 390; 2 Bail. 414. Prisoners for debt and felons to be kept in separate apartments of jail. Act of 1839, 49, 22 and 23, Ch. 2, c. 20, 2 Stat. 525; Act of 1788, 7th and 10th sects., 5 Stat. 79; McFlmoyle vs. Florence, 2 McC. 29; Dixon vs. Vanezara, 1 McC. 373. There is a difference in cases where even on mesne process after judgment the defendant escapes, and where he escapes before judgment, and the rule should in such case be the same as if escape were on final process. Smith vs. Hart, 2 Bay, 306; and so said by the judge in opinion in Court of Appeals, in Goolc vs. Irving, 4 Strob. 206, which case is also referred to on the general doctrine ; 2 Bail. 117; 2 McC. 29.
    
      Shannon, Kershaw, contra,
    cited 2 Bay, 312; 2 Bich. 534; 7 Bich. 168; Com. Dig. Execution, c. 10, 11.
   The opinion of the Court was delivered by

Wardlaw, J.

The envelopes of the commissions mentioned in the first ground of appeal, have been exhibited to this Court, and a closer examination of them, than opportunity allowed on the circuit, shows that they are not exactly similar. Both envelopes are sealed with wax and directed to the proper clerk; upon each appear names of Commissioners, professedly written by themselves, and proper post marks.

Upon one, the names are written across the concealed adhesive matter, which, as well as the external wax, fastened the package; and in argument here, objection to this one has been withdrawn.

Upon the other, adhesive matter and wax seals, yet unbroken, (the envelope having been cut open at the upper edge) are on the reverse, and the names of commissioners are written in one corner of the face, upon which the title of the case and direction to the clerk also appear. There is no appearance of unfairness, nor has there been a hint of suspicion that the envelope or the seals have been tampered with. The letter of the 95th rule of Court, which says, “ names of commissioners written by themselves across the seals,” is insisted on'for the plaintiffs.

The 49th and 50th rules had required the deposit of a commission in the post office by one of the commissioners, and a certificate of such deposit. To obviate the frequent objections which want of the certificate occasioned, the 9oth rule, repealing the others, substituted the names written as above mentioned, and the post mark for the deposit and certificate before required. All the requisitions of these rules were chiefly directory to the commissioners, intended to suggest to them, usually, persons beyond the jurisdiction of the Court, means for guarding against frauds, which may be practiced upon the depositions taken under the authority intrusted to them. So far as the requisitions-of the rule now of- force affect the discretion of the Court itself, a substantial compliance with them, accompanied by appearances of fairness, may serve; whilst the most exact adherence to them would not countervail evidences of fraud.

The names of commissioners must be “ written by themselves,” yet a commission from Australia would not be ordered to remain unopened until another one was sent to prove the handwriting of the commissioners; for who would prove the handwriting on the second one ? Until the contrary appeared, the handwriting would be presumed genuine. With like indulgence, pames written on a sealed envelope will be considered across the seals, until some reason arises for supposing that the seals have been broken.

Manifestly, the names could not have been written on th wax. They should then, it is urged, have been written partly at one edge of tbe wax and partly at another, in a line which would have been across.it; but this would have been “written near the seals" and so a departure from the very words across the seals.” The use of wax is not forbidden, is rather suggested by the rule, and the same detached signature which in a deed would take character from the seal, so that by combination of the two a specialty would be created, may be well held to be close enough to authenticate •the seal of an envelope. «

It has been supposed that “ across the seals” meant to require such arrangement of the names, as would prevent breaking of the seals without disturbance of the names. It is, however, well known, that where skilful villany is exercised upon the fastenings of paper packages, simple expedients relied upon to expose its tricks, serve only to produce treacherous security and delusion. To the care and fidelity of the commissioners, and the vigilant integrity of the post office department the safe return of commissions, sent by mail, must be confided ; and when, as rarely happens, grounds for suspecting unfairness are presented, a literal compliance with directions may be demanded to prevent fraud. Bat when there has been a manifest effort to pursue a direction, and its end has been attained, tbe Court will not allow it to be turned to the defeat of a full and fair trial, by nice discrimination between degrees of formality, not plainly distinguished by material circumstances:

The prominence given' by the plaintiffs, in their argument here, to their first ground of appeal, must be our excuse for the attention we have bestowed on it, so disproportionate to its intrinsic importance.

Directing careful attention to the report, we group the other grounds of appeal..

Under the instructions which were given to the jury, the verdict is their response that there was nothing in Enoch Tryon’s pecuniary ability, or in the circumstances which attended his escape, that required either for reparation of the plaintiffs’ loss, or for proper punishment of the sheriff, higher damages than the small sum which has been found for the plaintiffs; and further, that the ca? sa., of the plaintiffs’ was, before the render of the said Enoch Tryon, either withdrawn from the sheriff by the plaintiffs’ attorney, and not aftewards relodged, or -marked “wait orders,” and that order not after-wards countermanded. The Court does not perceive sufficient reason for disturbing the decision made by the proper Judges of fact upon matters properly submitted to them; and will therefore consider the facts, just enumerated, as established, if no controlling error in the instructions shall be detected in reference to any of them. It results that the sheriff did not at any time, between the render of the said Enoch Tryon and his escape, have in his hands a ca. sa., under which he could have arrested the said Enoch Tryon, if he had been lawfully at large : and of course that the sheriff had no ca. sa., which could operate as a detainer of the said Enoch Tryon when he was imprisoned by other process.

By what process, it is asked, was Enoch Tryon then held ? By the same process under which he was rendered in jail,— the original order for bail, — which, after the render, held him as at the same time it would have done if he had been arrested under it when the bail bond was given, and without giving bail had remained in jail all the intermediate time. Glover vs. Gomillion, 2 Rich. 554.

It has been supposed, that after judgment no bail bond could be given by a defendant whose bail had rendered him. If this be so, it is English common law, and does not affect this case; but the 14th section of the Sheriff’s- Act of 1889, (11 Stat. 29,) is probably large enough for giving the privilege of a new bail bond to a defendant rendered after judgment, as well as to one rendered before.

Again, it has been urged, that a debtor imprisoned after judgment, must be held by final process; but at common law, final process against the body is a ca. sa. — taking the body under that is a satisfaction, and a plaintiff has an election to take or not to take this satisfaction, of which he cannot be deprived' by a render which bail choose to make. After judgment, a plaintiff’s proof of the'amount due to him. is easy; but until he charges in execution his debtor, who may be in prison, and so becomes subject to consequences, that may be unprofitable, of the election thus made, he cannot claim the advantages of an election never made, by saying, in case of an escape, that the imprisonment was under final process.

E. Tryon’s petition said, as the plaintiffs have repeated here, that he was held under ca. sa., and that, they think, the sheriff was bound to take notice of; but the sheriff was no party to that petition, or to the proceedings under it. It is not probable that he knew what it contained; and if he did know, nothing that E. Tryon himself could have done or said could have made his imprisonment a satisfaction of the plaintiffs, if they did not choose to charge him in execution ; only as a circumstance touching the question of fact whether the ca. ca. was in the hands of the sheriff" was the petition at all admissible, and in reference to that it was no estoppel of the sheriff.

The conclusion must be, that E. Tryon was confined under mesne process, and this appeal must fail unless error in some material instruction, not yet considered, has been shown.

The plaintiffs’ counsel have admitted, in argument here, that the opinion- was unimportant to this case, which their arguments required the judge to express on circuit, and which they have brought under review here, by their fifth ground of appeal, concerning the sheriff’s duty at each term, under the Act of 1847, and the Acts of which that is amendatory. The same admission might well have been made as to the instructions which the third ground of appeal suggests should have been given. Whether then the sheriff’s return on the ca. sa. was good or was void, whether it was by relation to be referred to the Spring Term, 1855, or by lapse of time -became suitable to Fall Term, 1855, if it was made at the request of Mr. Caston, and made whert he withdrew the ca. sa. from the sheriff, it answered the use, which was made of it, as evidence upon the questions of fact, concerning the withdrawal and the order to wait, that were submitted to the jury. What appeared to have been written, and the time when- — September 20,1855 — were exhibited as circumstances from which inferences might be drawn. This Court intends to express no dissatisfaction with the opinions as 'to the return which were expressed on the circuit; but it does not feel the necessity of examining them carefully in this case.

The fact that the sheriff proved on oath before the clerk what professes to be a return of the ca. sa., was a strong circumstance (not conclusive, nor held on the circuit to be so,) tending to show that the paper passed out of the hands of the sheriff; and, if the withdrawal by Mr. Caston was found, confirming the inference raised by other circumstances, that Mr. Caston looked upon the return as a good one.

'In the proceedings against the bail, returnable to Fall Term, 1855, is seen reasobfor Mr. Caston’s requiring what he must have considered a return of non est inventus, which would be referred to Spring Term, 1855; and his desire to have recourse to the bail, rather than the body of Enoch Tryon, may have been a reason for his indorsing on the ca. sa. when Enoch Tryon returned, or was about .to return to the State, just' before Fall Term, 1855, the order to wait. This indorsement, if made before the return of the ca. sa., should properly have prevented that return, and required a different return, if one was demanded under the Act of 1847. The probability is that the indorsement was made after the return was written and the ca. sa. withdrawn by Mr. Caston ; and made, either to quiet apprehensions, which the sheriff may have mistakenly entertained, of harm to come to him for not executing the ca. sa. on Enoch Tryon’s return, or to make sure of the sheriff's not interfering, by the arrest of E. Tryon, with Mr. Caston’s purpose of avoiding a barren satisfaction and preserving, the remedy against the bail. In his view the bail were already fixed, and their period of indulgence ex gratia had nearly expired.

After the render of E. Tryon, Mr. Caston may have unintentionally neglected to relodge the ca. sa., with the orders to wait countermanded; or he may not have adverted to the greater liability of the sheriff that would have been thereby imposed; or he may have purposely forborne, with a view to the preservation of a lien on the debtor’s goods and lands, or with a view to a more distant day in the past, which, it has been sometimes supposed, confinement under a bail writ would refer to, in respect to fraudulent assignments and preferences under the 7th sect, of the Act of 1788, (5 Stat. 79,) than confinement under a ca.'sa. would do. Even after Enoch Tryon was convicted of fraud in his schedule, these may have been thought good reasons for holding on .to the chance of taking under a ft. fa the property which was found to have been fraudulently assigned, whilst the body of the debtor was held under lawful imprisonment ; the chance of his relief under the Insolvent Acts was gone, no supersedeas was claimed for want of charging in execution, and the sheriff was urged to vigilance and severity.

The motion is dismissed.

O’Neall, Glover, and Munro, JJ., concurred.

Motion dismissed.  