Governor Ex Rel. Armstrong v. Bailey

10 N.C. 463 | N.C. | 1825

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 third Monday 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. 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 in Forsyth 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 case Lanier 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.