#### John Finley v. William D. Smith.

Innovations upon the established forms of writs, especially of such as concern the personal freedom of the citizen, ought not to receive judicial sanction.

A writ commanding to take the body and safely keep, &c. until the Sheriff ■ make a sum o f money, and to have that money in court at the return day,” is not a ca, sa. but a novelty unknown to our law.

Whether the Sheriff would be justifiable in obeying or punishable for refusing to obey it, Qu 1 but it is, at all events, not sufficient to charge bail.

Scire eacias against Smith as the bail of one Peter Newton. The memorandum of the pleadings on the transcript was in these words: Plea — “the, capias was “ not directed to the Sheriff of Buncombe, which was “ the proper-county to which it should have been direct- “ ed “ Special replication,” that the capias issued to the “ county of Lincoln, which was tire domicile of the defendant Peter Newton, and therefore was the proper “county to which it should have been issued — -rejoinder “ and issue to the special replication.” The verdict of *96the jury was, “ that the replication of the plaintiff is true,” and a judgment was rendered for the plaintiff ac-COi-tiing to the prayer of his scire facias, from which the defendant appealed.

By a case stated by SeaweiA Judge who tried the case below, it appeared that on the trial a writ was produced and given in evidence directed to the Sheriff of Lincoln, commanding him to arrest the body of Peter Newton, if to be found, &c. and him safely keep until he should cause to he made the sum of sixty one dollars and ninety-nine cents, with interest, &c. and that he should have the said moneys besides, &c. before the Judge, &c. fit the court to be holden, &c. The defendant’s counsel objected that this writ was not a capias ad satisfaciendum, but the Judge held it was, and the jury found a verdict accordingly,

No counsel appeared for either party.

Gaston, Judge.

From the loose and imperfect statement of the pleadings 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 .«gainst 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 \Vhich 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 Nexo ton, (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 malte a liberal allowar.ee 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 appeal*. Our duty as prescribed by the Legislature, to inspect the \vhole record and to render thereon such .udgment as the court below ought to have rendered, cannot otherwise be per*97formed. We cannot see upon this record 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 required to be rendered upon such finding.

The Supreme, Court is required to inspect the whole record of a case brought up by appeal, and' must notice suh. stantial defects in the memorandum of pleadings used in our courts; in these so much must appear as to show with certainty on what point the issue was joined and the verdict given.

The seal of the sabíe ^th?va-lidity of a running out of the county in 'Thidl ,court sits. Without the seal the writ & a mere

It is stated however, that upon the trial of this issue, whatever it might he, 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 ad satisfa-ceindum, and that the court directed the jury it was “in law a capias 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 alledged 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.

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 supposed capias, and it being submitted without counsel on either side, we have no means of discovering the objections, hut 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 be exact, 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, lhe 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 form of authentication only in the, eases where *98the-writ is confined within the county Prom the court of which -it issues. (Act 1797, Rev. c. 474.) This point was conclusively settled in the case of the Bank of Cape Fear v. Seawell, (ante 3 vol. p. 279.) In all cases not coming under the exception, the seal of a court is as indispensable to its writ, as the seal of a party is indispensable to his bond.

•The case of Sank .of ■Cape (ante Vji mdfp. 279) approved.

But there is another objection which cannot be removed. The writ of capias ad satisfaciendum is one, ¡the forms .of which have been settled from the time of the earliest annals of judicial history. It commánds 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 office, whose duty 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 form, there is no difficulty in -knowing his duty, for that also has been perfectly settled by law. But when it is expressed in terms unkown 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 court would not punish him for shevv-,ing 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 astrange writ, which it does not know. The writ which issued in this case commands the sheriff not to take the body of Peter New *99 ton, and Iiitn safely keep, so that you may have his body before our Superior Court of Wilkes, to be holden, &c. then and there to satisfy John Finly, &c.” but, “ to arrest the body of Peter Newton, and him safely keep until you cause to be made the sum of sixty-one dollars, &c. which John Finley recovered, &c. and have yon the said monies before our court, &c. &c.” It is a singular species of distringas, against tire 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 byscire 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 a capias, 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 tó law.

Per Curiam — Judgment reversed.