Let the rule be discharged.
Ellis v. Gee, 5 N.C. 445, 1 Mur. 445 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 445, 1 Mur. 445
William Ellis v. George Gee, late Sheriff of Chatham.
i-From Chatham. J
A paper writing, upon which a constable arrests a debtor and imprisons him, not running in the name of the State, nor being directed to any ministerial officer, nor purporting to be signed by a Justice of the Peace, cannot be deemed a judicial process; and the Sheriff is not guilty of an escape, in permitting the debtor thus imprisoned, to go at large.
This was an action on the esse for an escape. The facts were, that Archibald Briant being arrested by one of the Constables of Chatham County, upon a process purporting to be a capias ad satisfaciendum, was committed fo the jail of said county, and George Gee being the Sheriff of said county, permitted him to go at large. Upon the trial of the case, the Plaintiff’s counsel offered in evidence a warrant sued out at the instance of the *446Plaintiff against Archibald Briant, and a judgment entered thereon for the sum of g25. He also offered in evidence the process purporting to be a capias ad satis-faciendum, upon which Briant had been arrested and committed to jail. It was in the following words :
“ You are hereby commanded to execute the body of Archibald Briant, and proceed against him as the law directs, where no goods and chattels are found, to raise the sum of $25, with interest. — July 26, 1S08. “ WE RAGLAND.”
The defence set up by the Defendant’s counsel was, that Briant had not been in prison on execution. He admitted that a constable had arrested him and put him into prison, and that the Defendant had permitted him to go at large; but he insisted that the paper writing offered in evidence upon which Briant bad been arrested and imprisoned, had neither the form nor substance of a capias ad satisfaciendum, nor could it be deemed a judicial process to any intent: it did not run in the name of the State — was not directed to any ministerial officer— did not recite nor refer to any judgment which had been recovered, nor did it purport to be issued by a justice of the peace: that therefore, the arrest and imprisonment of Briant had been illegal, and the Defendant was not guilty of an escape in permitting him to go at large. And of this opinion was the Court, and the Plaintiff was nonsuited. A rule to set aside the nonsuit, and grant a new trial being obtained, on the ground that the opinion of the Court was incorrect, the same was sent to this Court j and