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.

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Cited by: 1 opinion

GOVERNORv. BAILEY,10 N.C. 463(1825)

GOVERNOR TO THE USE OF ARMSTRONG v. BAILEY, ADMINISTRATOR OF

JUDGE, AND PERKINS AND NEVILLE.

Supreme Court of North Carolina

June Term, 1825.

1. When a justice of the peace enters a judgment on the back of a warrant, and writes, "execute and sell according to law," these latter words must be deemed an execution; for the proceedings of magistrates are entitled to a liberal construction in mere matters of form.

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.

DEBT, tried beforeNorwood, J., at HALIFAX, on the official bond executed by Judge and his securities upon his appointment to be a constable of Halifax County. The action was originally brought in the county court, and the breach of the condition was in not paying over to the real plaintiff, Armstrong, a sum of money alleged to have been collected by Judge as constable for his use. The defendants pleaded"Non est factum, conditions performed and not broken," and Bailey, the administrator, pleaded separately, "Fully administered, and that the personal estate had been sold according to the act of Assembly, and the money had not then been collected"; and on these pleas issue was joined. On the trial of the issues in the county court the jury found the obligation declared upon to be the act and deed of the parties, and found the breach of the condition as assigned by the real plaintiff, and assessed his damages at 22l. 5s. 6d.;and they further found that the administrator of Judge had fully administered. Judgment was rendered according to the verdict, and the plaintiff appealed to the Superior Court.

The cause was tried in the Superior Court at the last Spring Term,Norwood, J., presiding, and a verdict was taken for the plaintiff, subject to the opinion of the court upon the following case:

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.

TAYLOR, C. J.

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 be 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 inForsyth v. Sykes,9 N.C. 54, where the execution issued by the magistrate was almost literally the same as this; and it was sustained by the court upon the (465) principle that the proceedings of magistrates were entitled to a liberal construction when the exceptions related merely to regularity and form. In that caseLanier v. Stone,8 N.C. 329, was referred to, where the Court had determined that an irregular execution may be cured and corrected by the return of the constable. There is nothing in this case, as we read the record, that should induce us to depart from former decisions.

PER CURIAM. Reversed.Cited: McLean v. Paul,27 N.C. 24;Patton v. Marr,44 N.C. 378.Page 262