Governor ex rel. Shackelford v. Administrators of M'Rea, 10 N.C. 226, 3 Hawks 226 (1824)

Dec. 1824 · Supreme Court of North Carolina

10 N.C. 226, 3 Hawks 226

The Governor, to the use of Shackelford, v. Administrators of M‘Rea and others.

T t From Craven. J

A writ issuing to one, county from the Superior Court of another county, must have the seal of the Court from which it issues , impressed on it.

. This was an action of debt, against the representative of a deceased sheriff and his sureties, in which the jury found a verdict for the plaintiff subject to the opinion of the Court upon the following point: A writ, but without the seal of the Court, issued from the Superior Court of Craven to the sheriff of Cumberland, returnable to said Court, on which the sheriff endorsed, “ too late to hand.” The writ did not come too late to hand; and.it is submitted whether said writ, so unsealed and so issued, is one on which the sheriff is in law liable for neglect in executing, or making an untrue return thereon: if it be, then judgment to be rendered for the plaintiff; if otherwise, the plaintiff to be nonsuited.

The Court below gave judgmentTor the plaintiff and the defendant appealed therefrom to this Court.

Gaston, for the appellant.

Hawks, for the appellee.

Taylor, Chief Justice.

This question seems to be decided by the acts referred to. Dispensing with a seal where a writ issues to a county within the district, is a strong legislative declaration that a seal is essential, where a writ issues out of the district. It might be supposed that the signature of the clerk was sufficient proof of its authenticity, in all the counties where Courts where subordinate to the district Superior Courts, but not so well known beyond their limits. Probably since the alteration of the Courts, the same reasoning would render it necessary to add the seal to all writs issuing out of the county, since the counties now hear the same iudicial relation to each other as the districts ..... i , ... , formerly did. A process by which a man’s person or property is liable to- be affected, ought to bear on its face the highest evidence of authenticity; and the law has always considered, that the writs issuing from a Court are most satisfactorily proved by the seal provided by public authority, which every man is presumed to know. A seal of some sort has been indispensible to all original writs from the earliest times; and though the legislature has, in some instances, relaxed the common, law strictness of affixing them to all writs, they have assented and preserved the necessity of it in this case. My opinion is, that the sheriff is not liable.

Hall, Judge

By the act of 1791, ch. 344, the governor is authorized and required to procure seals for the Courts of record within the state. By the act of 1797, ch. 474, it is declared not to be necessary that the clerks of any District Court should affix the seal of the Court to process that issued to any county within the district, or that the clerk of any County Court should affix the seal of Ms Court to any process that issued to the county, of the Court of which he was clerk. Before these provisions, no doubt, it was the duty of the several clerks to affix their seals to all process that they issued. The duty of the clerk, in the case in question, was to affix his seal to the writ; it was not dispensed with by the act of 1797. The act of 1806, ch. 694, sec. 5. makes provision for seals for the present Superior Courts; if there was no seal of the Superior Court from which the writ issued, that should be made to appear. I tMnk the judgment should be set aside, and a nonsuit entered.

Henderson, Judge, was of tMs opinion also.