Opinion · Supreme Court of North Carolina
Governor Ex Rel. Armstrong v. Bailey
10 N.C. 463
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1825-06-05
- Topic
- general
Tayeor, C. J. delivered-the opinion of, the Court. The question made on the trial below appears from, the record to have been, whether the indorsement on the paper containing the warrant and judgment ought to he considered as an execution; for if it be so considered, the receipt of the money by Judge being of posterior date, was made in his official character, and comes within the penalty of the bond; The same question arose in For- *465 sythe v. Sykes, (2 Hawks 54.) where, the execution issued by the magistrate was almost literally the same as this; and it was sustained by the Court, upon the principle that the proceedings of magistrates were entitled to a liberal construction, when the exceptions related merely to regularity and form, in that case, Lanier v. Stone, (1 Hawks,) was referred to., where the Court had determined that an irregular execution may be cured and corrected by the retura of the constable.
Citator
UpLaw has not yet analyzed Governor Ex Rel. Armstrong v. Bailey. The absence of a flag is not a finding that it is good law.
- Cited by
- 1 opinion
2. When a constable, having such an execution in his hands, receives the money of the defendant therein, it is anofficial act, and not paying it over to the plaintiff is a breach within the penalty of his bond.
James Judge, the intestate, was appointed a constable on the thirdPage 261Monday of February, 1814, and the bond declared on was executed (464) by said Judge and the defendants Perkins and Neville, conditioned for the due discharge of his official duties. On 10 January, 1815, Judge received of Armstrong a note payable to one Edmund Jones, and executed by one William Woodard, for 17l. 6s. 11d. of the currency of Virginia, bearing date 14 January, 1813, the interest on which note was vested in said Armstrong. Judge sued out a warrant dated 10 January, 1815, upon the note, in the name of Jones, the payee, against Woodard; and on the warrant appeared the following entries indorsed: "Executed by James Judge." "17 January, 1815. Judgment against the defendant for $57.85, with interest from 14 January, 1813, and costs. Henry H. Jones, J. P." "17 January, 1815. Execute and sell agreeable to law. H. H. Long." "Received by James Judge, receipt dated 18 February, 1815, $24." "1815, September 9, this execution returned and renewed according to law. A. Read, J. P." Judge executed a receipt on 18 February, 1815, for the $24 in part of the judgment. The presiding judge was of the opinion that the plaintiff was not entitled to judgment upon the facts stated, because it did not appear that Judge had received the money in his official capacity, and a judgment was entered up for the defendant, whereupon the plaintiff appealed to this Court.
PER CURIAM. Reversed.Cited: McLean v. Paul,27 N.C. 24;Patton v. Marr,44 N.C. 378.Page 262