Opinion · Supreme Court of North Carolina

Forsythe v. . Sykes

Forsythe v. . Sykes, 9 N.C. 54 (N.C. 1822)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1822-06-05
Topic: general

Taylor, Chief-Justice. The objertton made to the executions is, that they wore not directed as the law reunites. It is not ídaifíl in the record whether the judgment was mitten on the same paper with the warrantor not, but it is to be presumed that it was, since it is not probable that another Magistrate would hate issued an execution «pon the judgment alone, without seeing that, a. warrant had been returned, executed against the Defendant. That a warrant was issued, and exeemied, appears frena the case, and that it was directed iu the manner re *56 quired by law, seems plain from this, that no exception is taken to it on that ground. Assuming, therefore, that the judgment and execution were written on the same pap61. wjph the warrant, and that the latter was properly directed, it has been decided that such direction will extend to the other process, and that it is not necessary to repeat it in each one.

Citator

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

Cited by: 1 opinion

FORSYTHEv. SYKES,9 N.C. 54(1822)

FORSYTHE v. SYKES AND OTHERS. — From Mecklenburg.

Supreme Court of North Carolina

June Term, 1822.

When a judgment and execution are written on the same paper with the warrant issued by a magistrate, and the warrant is properly directed, such direction will also extend to the execution, and it is not necessary to repeat it in the execution.

TRESPASS for taking ten barrels of tar. Plaintiff, on 8 January, 1820, purchased the tar of one Baggot at the kiln where it was made, and defendants afterwards took it away. The defendants, by way of justification, offered in evidence proof that Sykes was a constable, and that (55) the other defendants acted as his assistants in carrying into effect an execution against Baggot's property. The warrant against Baggot appeared to have been executed, and on it were the following endorsements:

The plaintiff proved his debt for the sum of $4.20 16 December, 1819. WM. TAYLOR, J. P.

Execute and sell as much of the defendant's property as will satisfy the above judgment and costs. — 19 December, 1820. THOMAS POLK, J. P.

Levied on ten barrels of tar. — 19 December, 1819.

Defendants produced also another warrant against Baggot, with the following endorsements:

Judgment against the defendant for the sum of $24.05 before me. — 7 January, 1820. D. CURTHBERTSON.

Execute and sell according to law. — 7 January, 1820. D. CURTHBERTSON.

Levied on ten barrels of tar — 7 January, 1820.

Defendants then offered to show that a levy was made on the tar, under the foregoing executions, prior to a sale of it to the plaintiff.Page 47

The court below rejected the evidence, and would not permit the executions to be read, because they were not directed to a "sheriff, constable, or other lawful officer." A verdict was returned for the plaintiff, a new trial was refused and judgment rendered; whereupon defendant appealed.

TAYLOR, C. J.

The objection made to the executions is that they were not directed as the law requires. It is not stated in the record whether the judgment was written on the same paper with the warrant or not, but it is to be presumed that it was, since it is not probable that another magistrate would have issued an execution upon the judgment alone without seeing that a warrant had been returned, executed against the defendant.

That a warrant was issued and executed appears from the case, (56) and that it was directed in the manner required by laws seems plain from this, that no exception is taken to it on that ground. Assuming, therefore, that the judgment and execution were written on the same paper with the warrant, and that the latter was properly directed, it has been decided that such direction will extend to the other process, and that it is not necessary to repeat it in each one. It cannot be denied that the judgments and executions are loose and informal, but the law has prescribed no certain mode for the judgment, and it cannot be expected that it should be entered up with the technical precision used in courts of record. It must from necessity be upheld, if it be sufficient in substance. When a debt is proved before a magistrate, it is a conclusion of law that there be a judgment upon it, and it was only necessary to add the word judgment, and even without that it was readily understood by the justice who issued the execution. The executions are less exceptionable, for they refer to the law as the guide by which the officer is to be directed; and it has been held inLanier v. Stone,8 N.C. 329, that where the execution directs the officer to levy upon goods and chattels, lands and tenements, it shall not be set aside if it appear by the officer's return that he has levied only in such manner as the law directs in the 19th section of the act of 1794.

That a fair and liberal construction should be given to the civil proceedings before a magistrate is dictated by various considerations, and is made compulsory on the court by the 16th section, which requires only that the essential matters should be set forth in the process.

PER CURIAM. New trial.Cited: Governor v. Bailey,10 N.C. 464;McLean v. Paul,27 N.C. 24;Patton v. Marr,44 N.C. 378.Page 48

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