44 N.C. 378 | N.C. | 1853
A fieri facias issued from this Court on a judgment at law, at the instance of the present plaintiff against John R. Dyke and others, directed to the present defendant, the sheriff of Cherokee County. It came in due time to his hands, and was returned with the following endorsement: "Enjoined." A judgment nisi was taken against the defendant, and he is now called on to show cause why it should not be made absolute. The plaintiff insists that the word endorsed, is no return in law, and our attention is confined to that single question.
It cannot be doubted, that according to the authorities cited by the plaintiff's counsel, the return in this case is informal, and (378) *350
under the practice in the English Courts would not be sustained; and we admit that the reasons assigned at the bar are very strong to show that the same strictness should be observed here. Neither in England, however, nor here, is there any legislative act directing in what manner a sheriff shall make his return in such a case. In both countries it is a matter of practice adopted by the courts, and such practice, when sanctioned by time, becomes the law of the court. In England, whose judicial history reaches back to a very remote period, a strict adherence to forms is required, from which the courts in this State have, in great measure, departed. From the circumstances under which our judicial system came into existence, it was soon found that such a departure was necessary. The cumbrous forms sanctioned by time there, did not suit the wilderness here, and in consequence, following in the footsteps of those who had gone before them, a system was adopted which, while it recognized the value of placing on record the pleas exhibiting the controversy between the parties, greatly relaxed the rigid adherence to mere matters of form, both in the judicial proceedings of our Superior Courts, and in the acts of our executive officers, in making their returns. Our reports are full of such cases, required alike for the security of suitors and others deriving title under official sales. Thus the act of 1836 (chap. 62, sec. 11), originally passed in the year 1794, provides that when a judgment is obtained before a single magistrate, "he may award an execution against the goods and chattels, lands and tenements, or body of the defendant." By the 16th section, it is directed that all executions issued by a justice of the peace shall be directed to the sheriff, constable, or other officer, and be made returnable in thirty days. In the case of Forsyth v. Sikes and others,
Looking, then, to the practice which has obtained in this State in similar cases, and the principle established in those referred to, the Court is of opinion that the endorsement made on the execution is a sufficient return, and that the fact disclosed in it exempts him from the penalty sought to be enforced against him.
PER CURIAM. Rule discharged.
Cited: Kincaid v. Conly,