1. An action cannot be maintained upon a bond given by a person arrested upon a capias, ad satisfaciendum, to keep within the limits of the rules of the prison.
2. Laws 1759, ch. 14, give to such bond the force of a judgment, and authorize the creditor to have execution thereon, upon motion in court.
From Hertford.
BY THE COURT.
Laws 1759, ch. 14, declare, "That bonds given in pursuance of the act of 1741, ch. 18, by any person committed on a capias ad satisfaciendum, shall, by the sheriff taking the same, be assigned to the party at whose instance such person was committed to jail, and shall be returned to the office of the clerk of the court from whence such execution issued, there to be safely kept, and shall have the force of a judgment; and if any person who shall obtain the rules of any prison, upon giving bond and security as aforesaid, shall escape out of the same before he shall have paid the debt, or damages and costs, according to the condition of such bond, it shall be lawful, and full power and authority are hereby given to the court where such bond is lodged, upon motion of the (422) party for whom such execution issued, to award execution against such person and his securities for the debt, or damages and costs, with interest," etc. This act gives to the bond the force of a judgment, and authorizes the party to have execution sued out thereon, upon mere motion. Here the plaintiff has brought an action on the bond as a common deed. He cannot elect to treat it as such; he cannot divest it of the attributes given to it by the act. He must consider it as clothed with the force of a judgment, and take the remedy thereon which the act prescribes. Judgment for the defendants.
Cited: Whitley v. Gaylord, 48 N.C. 287; S. v. Pearson, 100 N.C. 417.