25 N.C. 13 | N.C. | 1842
Three objections appear to have been made by the defendant, to the prayer of the plaintiff for a judgment against him. He insisted, first, that, as his principal succeeded in the County (15) Court in reversing the judgment rendered by the magistrate, the defendant's liability as surety for the appeal, was at an end; secondly, that he did not "subscribe" the engagement to be surety for the appeal, as required by the act of 1794 (Rev. St., c. 62, s. 23); and thirdly, that the engagement having been taken by the magistrate after the expiration of the ten days, allowed by that act for granting an appeal, it was taken coram non judice, and was therefore null.
The first objection was clearly untenable. Dolby v. Jones,
In answer to the second and third objections, it has been here urged that they ought not to have been entertained, for that the certified proceedings of the magistrate are in the nature of a record, and that evidence cannot be received to contradict them. We are not satisfied with this answer. The extrinsic evidence was not offered to impeach the force of the acknowledgment, made by the defendant as surety for the appeal, but to show that such acknowledgment was not made with the formalities required by law, or was made before one who had not jurisdiction to take it, and therefore was not in truth what it purported to be. The judicial proceedings before magistrates, do certainly resemble records in the conclusiveness of their effect, but they differ from records in this, that they do not conclusively prove themselves. Thus it may be shown, that a judgment which purports to have been rendered in a county, where a magistrate has jurisdiction, was in fact rendered out of his county.Hamilton v. Wright,
But while we hold the evidence to have been admissible, we agree with the counsel for the plaintiff, that the matters thereby shown, constituted no defence against the plaintiff's prayer. The act of 1794 does indeed require, that the surety for the appeal shall himself subscribe the acknowledgment before the magistrate, and this requisition would not, in our opinion, have been complied with, if the witness' (16) name had been subscribed by another in his presence, or by his direction. But in this case, the subscription was made by himself. He actually held the pen while the signature was written, and it was not the less his subscription, because he had the aid of a magistrate in making it. It is true, also, that the act of 1794 limits the time within which a defendant may demand an appeal from the judgment of a magistrate, to ten days after the judgment shall have been rendered, but we cannot doubt that, with the consent of the parties, the appeal may be taken after the expiration of the limited time. No consent can give jurisdiction where the law withholds it, but consent may enlarge the time, within which a legal privilege can be exercised. Wardens v. Cope,
We are of opinion, that the judgment below is erroneous, and ought to be reversed, and that the plaintiff is entitled to have judgment, as prayed for against the defendant, and to recover the costs of this appeal.
PER CURIAM. Judgment accordingly.
Cited: Long v. Weaver,
(17)
