#### GEORGE K. WALKER v. SAMUEL W. W. VICK.

A precept directed to the “ sheriff or jailor” of a county, and commanding' him to receive the body of the defendant “ into the common jail of the county, and him safely keep within the walls of said jail until he shall render” to the plaintiff “ the amount of the judgment,” &c. is not a ca. sa. but a mittimus, and without a proper ca. sa. will not authorize the detention of the defendant, nor make the sheriff liable for his escape.

This was an action of debt against the defendant, as sheriff, for an escape. Upon the trial at Nash, on the *100last Circuit, before his Honor Judge Strange, the plaintiff produced a judgment in favour of himself, against one Woodard, rendered by a single justice on the 12th of January, 1835. He then offered in evidence a paper writing, which he contended was a capias ad satisfacien-dum; on which was endorsed, “January 23d, 1835. Ex’ed, Samuel W. W. Vick, Shff. By William Arring-ton, D. S.” This paper was attached by a wafer to that on which the judgment was entered, and was in the following words, to wit:

“ State of North Carolina 1 To the sheriff or jailor Nash County. ) of said county. You are hereby commanded to receive into the common jail of the county aforesaid, the body of Elijah Woodard, and him safely keep within the walls of the said jail, until he shall render unto George K. Walker, the amount of the annexed judgment, interest, and cost due thereon, or be otherwise discharged according to law. Given under my hand, &c., this 23d day of January, a. ». 1835.

(Signed) B. Batchelor, (j. p.)”

It was objected by the defendant’s counsel, that this was not a ca. sa ; but it was received as such by the court, and the jury found a verdict for the plaintiff, and the defendant appealed.

No counsel appeared for the defendant in this court.

Devereux, for the plaintiff,

referred to the case of Finley v. Smith, 4 Dev. 95, and endeavoured to distinguish this case from it.

Daniel, Judge,

after stating briefly the facts as above, proceeded: — It seems to us, that the instrument offered as a ca. sa. cannot be considered in that light, because in form it is essentially different from a writ of capias ad satisfaciendum; and what puts it beyond doubt is, that it is directed to the sheriff or jailor. The jailor, as such, is not an officer to whom process ever issues to make an arrest. It does not appear that Woodard was surrendered in discharge of bail, or that he had been arrested on a ca. sa. The instrument appears to us to be a mittimus ; but *101Batchelor had no authority to commit before Woodard was legally in custody. We are of the opinion, that the judge erred in considering the instrument a ca. sa. We, therefore, are of the opinion, that there must be a new trial.

Per Curiam. Judgment reversed.