| N.C. | Jun 5, 1829
FROM RANDOLPH. The defense set up was that the paper, which purported to be (149) a writ in that cause, was a nullity, and upon this point the defendant proved that it was not written, signed or issued by the clerk of the County Court of Randolph, but that it was signed by a gentleman of the bar. This gentleman testified that the clerk was not present when the paper was signed and issued, and that the whole of it was in his (the witness') handwriting; that he had been an attorney of the County Court of Randolph, whence the writ purported to issue, for twelve years; that the person whose name was signed to the paper as clerk had filled that office during the whole of that time; and that from his admission as an attorney, he, together with all the other attorneys of the Court, had been expressly authorized by a verbal deputation of the clerk, to fill up and sign writs of subpoena and of capias adrespondendum, which writs had always been recognized by the clerk as valid and lawful, and that the writ in question was, upon the return thereof by the defendant, put upon the files of the Court as a writ by the clerk, who ratified and confirmed the act of the witness; and that the writ was now in the record of the County Court.
Upon this testimony the jury, under the instruction of the presiding Judge, returned a verdict for the plaintiff, and the defendant appealed. The plaintiff alleges that he sued out a writ of capias adrespondendum in an action of debt from the County Court of Randolph, against one Shubal Gardner, which came to the hands of the defendant (150) as sheriff of Randolph, who neglected to execute the same, and made a false return thereon. This is an action on the case to recover damages. The plaintiff declares in two counts — first, for the neglect of duty, and, secondly, for the false return. The defendant pleads not guilty. The validity of the writ is the question for the decision of this Court; it is expressly averred in the declaration, and is the gravamen of the action.
The Constitution, sec. 36, directs that all writs shall run in the name of the State, and bear test, and be signed by the clerks of the respective Courts. The defendant says the paper purporting to be a writ was void, and gave him no authority to make the arrest therein required; that it was neither signed, nor issued by the Clerk of Randolph County Court. A gentleman of the bar was introduced as a witness, on the trial below, who testified that the paper had been written, signed, and issued by him, in the name of the clerk, but in his absence; that he had been practicing as an attorney in the Court for twelve years, and on his admission to the bar he and the other members thereof had been verbally authorized by the clerk to write, sign, and issue, in his name, writs of capias ad respondendum; and they, and each of them, continued to exercise the authority from that period to the time of giving testimony.
The clerk is selected for his "skill and probity"; his appointment is made by the jurdicial [judicial] officers of the Court, and is recorded on its minutes. He has the custody of the archives of the Court. He is, by virtue of his office, to issue writs, and by constitutional injunction must sign his name thereto. A writ of capias ad respondendum, by our court law, forms a part of the record of the suit, which it is issued to commence. In our State, the issuing of the writ is the commencement of the action. The writ of a Court of record, having a seal, is known by that seal, which is in the keeping of the clerk, and is impressed by (151) him. The affixing of the seal was a constituent part of the writ, until the act of 1797, dispensed with its use, in process issued to the county in which the clerk officially acts. Dispensing with the seal does not change the character of the writ. It possesses the same dignity and solemnity now as when clothed with that emblem of justice. It imparts the same power and authority to the officer to whom it is directed. It is equally beneficial to him who sues it out, and equally dangerous to the citizen against whom it issues. It commands the sheriff to take and safely keep him who is named therein as the subject of the arrest. The loss of personal liberty, with all the privations and inconveniences *93 incident to confinement in a public jail, may be the consequence of this exercise of authority.
The seal of office, and the signature of the clerk, are the testimonials by which the authenticity of writs is to be known. Remove these indicia of authenticity and you endanger the peace of society, and lessen the security of the citizen by leaving him in doubt as to the genuineness and character of the instrument which commands his arrest; and you thus augment the responsibility and danger of the officer to whom it is directed. By dispensing with the seal, as to process to be confined to the county in which it issues, the Legislature have increased the necessity for a strict compliance with the constitutional requisition that all writs should be signed by the clerk of the Court from which they are issued, whose writing may have a marked character, and whose signature may be generally known.
By Laws 1777, ch. 115, sec. 86, the clerk of every Court may appoint a deputy, "who shall take the oath appointed for the qualification of public officers, and an oath of office; and in case of the death of the clerk of any Court in the vacation his deputy shall hold the office of clerk until he or another shall be appointed agreeably to law." It cannot be pretended that the gentleman who signed and issued this writ was the deputy whose appointment was sanctioned by this (152) act. It does not appear that he had taken either of the prescribed oaths, or that he had undertaken the duties and responsibilities of a deputy. He was one of a whole bar, who claimed and exercised equal authority. The case shows that he was claiming to act as an agent, and not assuming the character of the deputy authorized by law. The act of legislation contradicts the idea of any other agency in the discharge of the clerical duties than that prescribed by law. So far as assistance to the incumbent or provision for his disability was in the contemplation of the Legislature, the selection of a competent deputy will meet every emergency, and will supersede all necessity for any other agency. The legislative body thought that no man should be called to the exercise of these functions without performing them under the obligation of solemn oaths. If the Legislature did believe that without this clause in the Act of 1777 the clerical functions could be performed by agency, at the will of the incumbent, then they must be understood, by irresistible implication, as restricting the agency to the deputy appointed and qualified in the mode prescribed by law.
The same act of the general assembly which provided for the appointment of clerks prescribed the mode of constituting deputies. But it is said that the signing and issuing of writs are ministerial duties, which the clerk can perform by agency, and that this legislative enactment on the subject of deputies was principally to authorize some agent to act, in *94 the event of the clerk's death in vacations, and was not intended to restrict the exercise of this common law right, nam qui facit per alium,facit per se. Let these positions be conceded, and it will then be necessary to inquire whether the agent on this occasion had authority to sign and issue the writ. It is not sufficient to ascertain that the clerk had power, and could delegate it. But did he so delegate it as to (153) authorize its exercise. If the paper be issued without authority, if it be not a writ, the execution of it would make the sheriff guilty of false imprisonment. The plaintiff directing and participating in its execution, would be a trespasser; and the party to be arrested could repel force by force, and resist the officer even unto death.
For the ordinary purposes of business and commerce, authority verbally given is deemed sufficient. But the clerk could not, as an individual, authorize an agent to transfer his freehold, or to bind him by deed, unless by an instrument of writing under seal, on account of the dignity and solemnity of the acts in legal contemplation. Power to bind the principal by deed can only be given by deed; authority should generally be delegated by acts, commensurate in dignity and solemnity with the acts to be done. Recollect, that the document to be signed and issued would, except for the acts of 1797, have the impress of an official seal, as well as the name of a public officer; that it now has, from the signing, all the authority it had when bearing the seal; that it forms part of a record; that it is the act of a Court of record, by its agent duly constituted, and that it is the command of the law to a public officer to arrest a free citizen. Should such power be given by an instrument of less dignity than a deed? There should at least be some written evidence of the delegation of such authority. The repose of society, the security of the citizen, and the safety of the officer, require some written memorial of the transfer of such power. The authority in this case was verbally given to the agent, and he was not authorized to perform an isolated act. He was not directed by the clerk to sign in his name a single writ. But the agent was one of several, or many persons, authorized to do acts, indefinite in number, and unlimited as to time.
In England, when an original writ is sued out of the ordinary Court of Chancery, the capias, which is mere leading process, is put (154) into the hands of the sheriff, and he issues his warrant to the bailiff, who executes it. There the sheriff delegates his power by a written precept. In Dick v. Stoker,
It is said the defendant, as sheriff, received and returned to court the paper as a writ, and should not now be heard as denying its validity. He was the officer of the law to execute process, not to issue it. *95
He had no authority to make a writ. His recognition of it could not give a character to the document which it did not possess at the time of its issuing. His mistake could not cure any defect in the paper, nor was he estopped from showing that the paper was a nullity. The decision of this Court, in Governor v. McRae,
It is also said that the clerk subsequently recognized and adopted the act of the agent, by receiving the paper as a writ and filing it among the records of the court. The subsequent acquiescence of the clerk in the act of the agent could not give the document a character which it did not possess when it was in the hands of the sheriff. And if a new character could be thus imparted it could not have a retrospective effect, so as to make the officer liable for the non-execution of a paper, which was inoperative while in his hands. Had the sheriff attempted to exercise power under the paper, and was in the act of making the arrest when the authority was denied, and force met with force, and death ensued, could the grade of the homicide be affected by the subsequent assent or refusal of the clerk to confirm the act of the agent in signing and issuing the paper? Such a position can not be assumed.
It is supposed a practice has prevailed in many counties of the State which authorizes gentlemen of the bar to write and sign writs of capias adrespondendum in the name of the clerk, and then to issue them; and that declaring such paper so issued not to have the character of a writ will be productive of serious inconvenience, and extensive mischief. It is believed such a practice has been confined to few counties, and is circumscribed in extent. But the more extended the error the greater *96
necessity for arresting its progress. Much inconvenience is not apprehended from the decision; at least, no great public mischief. If a paper thus issued be executed, and the defendant appears and pleads in chief, he will thereby waive the objection. The defendant may come into court without process, and make himself party to a suit; he can by appearance dispense with process to bring him in. If he submit to the arrest, and give bail, he can then plead in abatement to the writ, and the defect will be fatal. But if he plead in chief it will be (156) a waiver of the defect, and be equivalent to an acknowledgment that he had been brought into court by proper process. Dudleyv. Carmolt,
Cited: Worthington v. Arnold, post, 363; Garner v. Lane,