p. 288ings upon the judgment until the further order of the court ;• that on the sixth day of August, notice of the issuing of the writ of error and the order of the commissioner, were duly-served upon the attorneys of the plaintiff, and upon the sheriff; and that after the.service of such notice, and not before, Rowan, escaped, &c. The defendant also offered to prove that Rowan did not give bail for the liberties, all which evidence thus offered tó be given, was objected «to by the plaintiff, and excluded by the court, The defendant excepted to such decision, and the jury- under the charge of the court, found a verdict for the plaintiff. The defendant sued out.a writ of error.
J. Crary, for the plaintiff in error,
insisted, that from the time of the "service of the order of the commissioner upon the sheriff, it would have been illegal for him to have imprisoned Rowan. The very object of the statute in authorizing an order to stay, was to arrest proceedings upon the execution in whatever condition they might be} no one would deny that such an order would suspend proceedings upon a fi. fa. at any moment before the money made upon the sale of the defendant’s property was paid over to the plaintiff; and yet it is contended on the other side, that it has not the same effect upon a ca. sa. If there be á difference between the two kinds.of execution in reference to this statute, the proceedings upon the ca. sa. should be arrested iii preference to those upon a fi. fa. The latter is called a final execution, and is the end of the suit, hut not so. a ca. sa. ; it is said to be quousque, as tending to an end, but not as being final, 6 Reports, 87. A ca. sa. is not executed by the mere arrest of the defendant; it is merely in course of execution, and so continues whilst the defendant remains imprisoned.
B. Blair & C. L. Allen,
for the defendant in error, admitted that if the ca. sa. had not been fully executed, the order to stay would have operated as a supersedeas under the provisions of the revised statutes, 2 R. S. 596, 7, § 29, 30 ; but' they contended that the arrest of the defendant up
p. 289on the ca. sa. even without commitment, was a full execution of the process. Graham’s Pr. 364. 1 Archbold’s Pr. 304, and cases cited, and 8 Wendell, 545. The fact that the defendant had not given bail for the liberties, did not alter the case; the bail is for the indemnity of the sheriff, and if he chose to let the defendant go at large upon the limits without bail, he did so at his peril. 3 Johns. Cas. 73 .
By the Court,
The sheriff having taken Rowan into custody on the ca. sa. before the service of the order to stay execution, the question is whether the subsequent service operated to discharge him from the commitment. A writ of error and putting in bail clearly would not have had that effect before the statute, Willes, 271, 280; and the decision therefore must depend upon the interpretation of the statute. It provides, 2 R. S. 569, § 30, if no execution shall have been issued, the service of the order shall stay the issuing thereof; if one shall have been issued, it shall stay the further execution thereof. The execution of the ca. sa. is by arresting the defendant and committing him to jail—indeed his arrest is, per se, a complete execution, as he is then, in the contemplation of the law, in its custody, Willes, 280, and the commitment to the jail is merely for the purpose of safe-keeping. An escape before is attended with all the consequences of one after commitment. 8 Wendell, 545.
The giving of bail for the limits is no part of the execution of the process ; it is but the means of relaxation from the rigor of execution. 3 Johns. Cas. 73 . Much less is the receipt of the debt; that is in the way of discharge from execution.
Judgment affirmed.