Opinion · Supreme Court of North Carolina

Finley v. . Smith

Finley v. . Smith, 15 N.C. 95 (N.C. 1833)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1833-12-05
Topic
general

Gaston, Judge. From the loose and imperfect statement of the pleadings contained in this record, the Court is unable to ascertain what was the issue of facts submitted to the jury. It appears that a scire facias was sued out .«gainst the defendant as bail for Peter Newton, against whom the plaintiff had recovered a. judgment; that to this scire facias, the defendant pleaded “ that the capias ad satisfaciendum was not directed to the Sheriff of Buncombe, which was the proper county to \Vhich it should have been directed — to which plea the plaintiff’ replied, that “ the capias issued to the county of Lincoln, which was the domicile of Peter Nexo ton, (the principal) and therefore was the proper county to which it should have been directed,” that the defendant rejoined to this replication and thereon issue was taken. With every disposition to malte a liberal allowar.ee for the practice which prevails of setting forth in the record the substance of the pleadings instead of inserting them in full, we must require that the substance shall appeal*. Our duty as prescribed by the Legislature, to inspect the \vhole record and to render thereon such .udgment as the court below ought to have rendered, cannot otherwise be per *97 formed.

Citator

UpLaw has not yet analyzed Finley v. . Smith. The absence of a flag is not a finding that it is good law.

Cited by
2 opinions
FINLEYv. SMITH,15 N.C. 95(1833)
JOHN FINLEY v. WILLIAM D. SMITH.
Supreme Court of North Carolina
(December Term, 1833.)
1. Innovations upon the established forms of writs, especially of such as concern the personal freedom of the citizen, ought not to receive judicial sanction.

2. A writ commanding to take the body and safely keep, etc.,until thesheriff make a sum of money, and to have that money in Court at thereturn day, is not aca. sa., but a novelty unknown to our law.

3. Whether the Sheriff would be justifiable in obeying or punishable for refusing to obey it, Qu? but it is, at all events, not sufficient to charge bail.
SCIRE FACIAS against Smith as the bail of one Peter Newton. The memorandum of the pleadings on the transcript was in these words:Plea— "the capias was not directed to the sheriff of Buncombe, which was the proper county to which it should have been directed `Special replication,' that the capias issued to the county of Lincoln, which was the domicile of the defendant Peter Newton, and therefore was the proper county to which it should have been issued; rejoinder and issue to the special replication." The verdict of the (96) jury was, "that the replication of the plaintiff is true," and a judgment was rendered for the plaintiff according to the prayer of hisscire facias, from which the defendant appealed.
By a case stated bySeawell, J., who tried the case below, it appeared that on the trial a writ was produced and given inPage 79evidence directed to the sheriff of Lincoln, commanding him to arrest the body of Peter Newton if to be found, etc., and him safely keepuntil heshould cause to be made, the sum of sixty-one dollars and ninety-ninecents, with interest, etc., andthat he should have the said moneysbesides, etc.,before the judge, etc., at the court to be holden, etc. The defendant's counsel objected that this writ was not acapias adsatisfaciendum, but the Judge held it was, and the jury found a verdict accordingly.
No counsel appeared for either party.
GASTON, J.
From the loose and imperfect statement of the pleading contained in this record, the court is unable to ascertain what was the issue of facts submitted to the jury. It appears that ascire faciaswas sued out against the defendant as bail for Peter Newton, against whom the plaintiff had recovered a judgment; that to thisscire facias, the defendant pleaded "that thecapias ad satisfaciendumwas not directed to the sheriff of Buncombe, which was the proper county to which it should have been directed"; to which plea the plaintiff replied, that "thecapiasissued to the county of Lincoln, which was the domicile of Peter Newton (the principal), and therefore was the proper county to which it should have been directed," that the defendant rejoined to this replication and thereon issue was taken. With every disposition to make a liberal allowance for the practice which prevails of setting forth in the record the substance of the pleadings instead of inserting them in full, we must require that thesubstanceshall appear. Our duty as prescribed by the Legislature, to inspect the whole record and to render thereon such judgment as the court below ought to have rendered, cannot otherwise be performed. We cannot see upon this record (97) what was the traverse taken by the rejoinder, nor what was the fact found by the verdict, and of course cannot decide what judgment the law requires to be rendered upon such finding.

It is stated, however, that upon the trial of this issue, whatever it might be, a question arose whether a writ issued to the county of Lincoln, and a copy whereof is made a part of the case, was in law acapias adsatisfaciendum, and that the Court directed the jury it was "in law acapias ad satisfaciendum,"that the jury found a verdict in favor of the plaintiffaccordingly;and that the defendant moved for a new trial of the issue, because of this alleged misdirection. We must presume this question was a material one on the trial of the issue, and have therefore directed our attention to the decision made upon it.Page 80

Here again, we are met with a difficulty. The case does not point out, or in any manner intimate what are the objections to the supposedcapias, and it being submitted without counsel on either side, we have no means of discovering the objections, but by examining the copy of thecapiasset forth. The writ purports to have issued from the Superior Court of Wilkes to the sheriff of Lincoln, and if the copy beexact, the writ is not under the seal of the Court. We should probably defer our judgment, if it were to rest upon this objection, and endeavor by some proper process to get the original writ before us, or otherwise become certain that this apparent defect actually existed, because it ispossiblethat the clerk may have neglected in his copy, to show forth the seal. If in truth the writ to Lincoln be without seal, it is not in law a writ issued by the Superior Court of Wilkes. All writs issued by a Court in this State not under the seal of the Court, except when they are directed to the officers of the county in which the Court is held, are absolutely null. The common law requires that the seal of a Court of Record shall be affixed to all its writs, and our Legislature has dispensed with this essential from of authentication only in the cases where the writ is confined within (98) the county from the Court of which it issues. Act 1797, Rev., c. 474. This point was conclusively settled inBank v. Seawell,14 N.C. 279. In all cases not coming under the exception, the seal of a Court is as indispensable to its writ, as the seal of a party is indispensable to his bond.

But there is another objection which cannot be removed. The writ ofcapias ad satisfaciendumis one, the forms of which have been settled from the time of the earliest annals of judicial history. It commands the officer to take the body of him against whom it is directed, and him safely keep, so as to have his body before the Court to satisfy the plaintiff, the debt recovered. The forms of a writ, the execution of which has so important an operation as to deprive a citizen of his liberty, are so many securities for the liberty of all the citizens. No writ ought to be considered as acapias ad satisfaciendumwhich plainly disregards them. The sheriff to whom a writ is directed, is a ministerial officer, whose duty it is to obey the requisitions of the mandate. It is necessary that this mandate should correspond with that which the law prescribes, for the sheriffordinarilycannot look beyond it. If it proceed from a Court having jurisdiction, he is protected or punished, in general, accordingly as he obeys or disobeys it. When a writ issues in the settled from, there is no difficulty in knowing his duty, for that also has been perfectly settled by law. But when itPage 81is expressed in terms unknown to the law, a conflict is presented between the language of the mandate on one side, and the requirements of the law on the other. Perhaps he might be protected in yielding obedience to the former, and probably the the Court would not punish him for showing greater respect to the latter. However this may be, and whatever might be the remedy of the citizen, if the sheriff obeyed the strange writ, the law will not sanction such a writ, because it is a strange writ, which it does not know. The writ which issued in this case commands the sheriff not to "take the body of Peter Newton, and him safely keep,so that you may have his body beforeour Superior Court of Wilkes, to be holden, etc., then and (99) there tosatisfy John Finley, etc.," but, "to arrest the body of Peter Newton, and him safely keep until you cause to be made the sum of sixty-one dollars, etc., which John Finley recovered, etc., and have youthe said moneysbefore our Court, etc., etc." It is a singular species ofdistringas, against the body of Newton, by means of which the officer is, at all events, tosqueezethe money out of him, and have that money forthcoming at the next Court. In our opinion, it is not our well knowncapias ad satisfaciendum, but a stranger to our laws.

This is not a case in which acapiashas issuedirregularly, as upon a dormant judgment, not revived byscire facias, which irregularity may be waived or not by the principal, and to which the bail cannot object, but it is one in which the writ given in evidence as acapias, is not in law acapias, and where the bail has a right to demand a propercapias.

The judgment of the Court below, is to be reversed, and the verdict set aside, and the cause remanded to the Superior Court of Wilkes for further proceedings. Should it again come before us, we hope that it will be presented in such a shape as to enable us to decide it finally, and according to law.

PER CURIAM. Judgment reversed.Cited: Freeman v. Lewis,27 N.C. 96;Houston v. Walsh,79 N.C. 40;Taylor v. Taylor,83 N.C. 118;Perry v. Adams, Ib., 268;Henderson v.Graham,84 N.C. 501.Page 82