Governor ex rel. Armstrong v. Bailey, 10 N.C. 463, 3 Hawks 463 (1825)

June 1825 · Supreme Court of North Carolina

10 N.C. 463, 3 Hawks 463

Governor, to the use of Armstrong, v. Bailey, administrator of Judge, and Perkins and Neville.

From Halifax.

When a justice of the peace enters a judgment ob the back of a .warrant, and writes, “execute and sell according to law.” these latter words must be deemed an execution; tor the proceedings of magistrates are emilled to a liberal construction in mere matters of form.

When a constable, having such an execution in his hands, receives the money of the defendant therein, it is an official act, and not paying it over to the plaintiff is a breach within the penalty of his bond.

This was an action of debt, on the official bond executed by Judge and his securities upon his appointment to be a constable of Halifax county. The action was originally brought in the County Court, and the breach of the condition was, in not paying over to the real plaintiff, Armstrong, a sum of money alleged to have been collected by Judge as constable for bis use. The defendants pleaded ‘ non est factum, conditions performed, and not broken:’ and Bailey, the administrator, pleaded se-perately, ‘fully administered, and that the personal estate bad been sold according to the act of assembly, and the money had not then been collected;’ and on these pleas issue was joined. On the trial of the issues in the County Court, the jury found the obligation declared upon, to be the act and deed of the parties, and found the breach of the condition as assigned by the real plaintiff, and assessed his damages to 221. 5s, 6d.; and they further found, that the administrator of Judge bad fully administered. Judgment was rendered according to the verdict, and the plaintiff appealed to the Superior Court.

The cause was tried in the Superior Court at the last spring term, Norwood, Judge, 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 by said Judge and the defend- > \ ants, Perkins and Neville9 conditioned for the due dis-cjlarge 0f j,is official duties. On the 10th of Jan. 1815, Judge received of Armstrong a note payable to one Edmund Jones, and executed by one William Woodard, for 171, 6s. lid. of the currency of Virginia, bearing date the 14th of January, 1813, the interest in ivhieh note was vested in said Armstrong. Judge sued out a warrant dated the 10th 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.” “ 17th January, 1815. Judgment against the defendant for fifty-seven dollars and eighty-five cents, with interest from. 14th day of January, 1813, and costs. Henry H Jones, J. P.” — “ 17th Jan. 1815. Execute and sell agreeable to law. II. H Long.” — “Received by James Judge, receipt dated the 18th February, 1815, four'and twenty dollars.” — “ 1815, Sept. 9, this execution returned and renewed according to law. A. Read, J. P.” Judge executed a receipt on the 18th Feb. 1815, for the four and twenty dollars in part of the judgment. The presiding judge was of 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.

Tayeor, C. J.

delivered-the opinion of, the 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 he 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 For- sythe v. Sykes, (2 Hawks 54.) where, the execution issued by the magistrate was almost literally the same as this; and it was sustained by the Court, upon the 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, (1 Hawks,) was referred to., where the Court had determined that an irregular execution may be cured and corrected by the retura of the constable. There is nothing in this caso, as we read the record, that should induce us to depart from former decisions. Let there be a new trial.

Judgment reversed.