"State of North Carolina} 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.D. 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. — 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 *Page 101 Batchelor had no authority to commit before Woodard was legally in custody. We are of the opinion, that the judge erred in considering the instrument aca. sa. We, therefore, are of the opinion, that there must be a new trial.
PER CURIAM. Judgment reversed.