Opinion · Supreme Court of North Carolina

Holding v. . Holding

Holding v. . Holding, 4 N.C. 324 (N.C. 1816)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1816-01-05
Topic
bankruptcy

In determining this case the question necessarily presents itself, whether it appears by the return on the subpoena that the defendant was summoned, and we are all of opinion that it does not. The law considers every court cognizant of the officer to (325) whom it authorizes such court to direct its precepts; and when return is made, the officer is presumed, in law, to have come personally into court and there to have been recognized in virtue of his commission; and hence it was unnecessary at common law to make any return upon the writ otherwise than "Executed," or the like. The Statute of Edward II., however, required that the return should be made in the proper name of the sheriff. When a precept, then, is directed to the sheriff of a particular county and is returned, and appears to have been executed by a person who was sheriff, the presumption exists that he was sheriff until it shall be alleged otherwise by plea; and if the party affected does any act in aid of this presumption, as by pleading to the action, he becomes forever concluded. 2 L. Ray, 884; 1 Sal., 265.

Citator

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

Cited by
1 opinion
HOLDINGv. HOLDING,4 N.C. 324(1816)
HOLDING v. HOLDING. — 2 L. R., 440.
Supreme Court of North Carolina
(January Term, 1816.)
1. A return upon a subpoena in the name of a person who subscribes his name with D. S. annexed (by which is understood deputy sheriff) is not sufficient; for the court cannot judicially know a person deputed to act for the sheriff, because his authority rests upon the private delegation of the sheriff. The return should be in the name of the principal.Page 251

2. The return of a sheriff is upon oath, and therefore concludes a party in many cases; but a return of a person styling himself deputy sheriff has no greater verity than that of any private individual.

3. Asci. fa. issued upon a judgmentnisifor a forfeiture which does not state any sum to have been accrued by the forfeiture, is fatally defective.
THE defendant was served with asci. fa. to show cause why a finenisiimposed on him for not obeying asubpoena, whereby he was summoned a witness for the plaintiff in a suit between him and Smith, should not be made absolute. No sum was stated in thesci. fa. Plea:Nul tiel record, andabsent by consent of the plaintiff. The last plea was negatived by the verdict of the jury; and in support of the issue to the court the plaintiff produced a subpoena on which was endorsed this return:"Executed. Edmond Prince, D. S."
SEAWELL, J.
In determining this case the question necessarily presents itself, whether it appears by the return on the subpoena that the defendant was summoned, and we are all of opinion that it does not. The law considers every court cognizant of the officer to (325) whom it authorizes such court to direct its precepts; and when return is made, the officer is presumed, inlaw, to have come personally into court and there to have been recognized in virtue of hiscommission;and hence it was unnecessary at common law to make any returnuponthe writ otherwise than "Executed," or the like. The Statute of Edward II., however, required that the return should be made in the proper name of the sheriff. When a precept, then, is directed to the sheriff of a particular county and is returned, andappearsto have been executed by a person who was sheriff, the presumption exists that hewassheriff until it shall be alleged otherwise by plea; and if the party affected does any act in aid of this presumption, as by pleading to the action, he becomes forever concluded. 2 L. Ray, 884; 1 Sal., 265.

Again: Such high confidence does the law repose in the integrity and ability of such officers, that their acts are in most instances conclusive upon the parties; and this in consideration of the dignity presumed to be attached to the character of him who is appointed to so important an office, and of the oath, also, and the sureties of such officer truly to execute the same. But with respect to a person deputed by thesheriffto act forhim, this Court cannot judicially know him, because hisauthorityto act rests upon theprivatedelegation of thesheriff;and a strong authority in this point isBuller, J., Woodgate v. Knatchbull, 2 Term, 148, and 2 Bla. Rep., 834.

In the present case it is not pretended that Edmond Prince, in whose name the return is made, was the sheriff; and if it was, the fact appearsPage 252otherwise, by the return itself; for he signs "Edmond Prince, D. S.," a character perfectly understood in this State to meandeputysheriff. The subpoena, then, is directed to the sheriff of Chatham, commanding him to summon the defendant, and it iscertifiedto be executed by an individual who (to make the most of the case) certifies that he is the deputy of the sheriff.

The return of a sheriff upon a precept is upon oath, and equal to the affidavit of a respectable citizen, and that is the reason why it (326) concludes a party; but the return in the present case contains no greater verity than the certificate of John Doe. Princemayhave been the deputy, and the subpoenamayhave been served; but we cannot recognize a return made in the name of any other person than the officer appointed by law. If such officers are required to make the return in their own name, then there is the security the law intended for the citizen insured by the return.

If we were to sustain such a return, it is placing it in the power of any individual to make a return upon a precept, provided he will add, "D. S." There is, moreover, an incurable objection to thescire facias— no sum being stated to have accrued by the forfeiture; and in a case brought up by a judge for hisown sake, this Court will look into everything whichincontrovertiblyappears in the proceedings.

Wherefore, we are all of opinion that the return of the deputy sheriff cannot be respected, and that there be judgment for defendant.

NOTE. — Upon the question of the return in the name of the deputy sheriff, seeMcMurphey v. Campbell,2 N.C. 181;S. v. Johnson, ibid., 293.Cited: Dobson v. Murphy,18 N.C. 590;Washington v. Vincent,49 N.C. 381;McDonald v. Carson,94 N.C. 502;Brickhouse v. Sutton,99 N.C. 109;Piland v. Taylor,113 N.C. 3.