Administrator of Wingate v. Galloway, 10 N.C. 6, 3 Hawks 6 (1824)

June 1824 · Supreme Court of North Carolina
10 N.C. 6, 3 Hawks 6
Administrator of Wingate, v. Galloway

Administrator of Wingate, v. Galloway.

I From Ncw-Hanovcr.

An execution not having endorsed thereon Ihe costs in words, at , length, is yet good as to every tiling but costs, and must be obeyed accordingly.

This was an action on the case, and the. declaration contained two counts : the first charged that the Plaintiff recovered, in Ncw-Ilanover County Court, a judg-*7i'.ient against Benjamin Smith, on which a writ of ca. sa. issued, directed to the Defendant, as Sheriff of Bruns-i wick county, who neglected to execute the same, and falsely returned that Benjamin Smith was not to he found in his county.

The second count, charged that Plaintiff sued out one other writ of ca. sa. against Benjamin Smith, directed to the Defendant as Sheriff of Brunswick county, who, after the 15th of February, 1821, took and arrested the said Benjamin Smith, by virtue thereof, and afterwards, to wit, on the 1st of May, 1821, suffered the said Benjamin Smith to escape and go at large, out of custody, and made a return as follows: “Writ executed by arresting and taking Defendant into my custody, who was released upon giving bond and security to comply with the requisitions of the act of 1820, passed for the relief of honest debtors. Bond made returnable in pursuance of said act, to the County Court of Brunswick, at July Term, 1821.”

On the trial below, before Norwood, Judge, the Plaintiff offered in evidence a paper purporting to be an execution, at his instance, against Benjamin Smith, on which, among other endorsements, was the following: “ Bill of costs: CPk g 7",68¿-; tax and duty $ 2 ; Sheriff’ Si,20 $ Att’y S 4.” This was objected to, and rejected by the Judge, on the ground that it was not an execution, but void as having no legal bill of costs attached to it. Plaintiff then offered in evidence a preceding execution, on the same judgment, and the endorsement of costs thereon was as follows : “ Process and bond $ 1,60; determination 75 cents ; continuance 30 cents,- tax and duty g2; Sheriff S 1,20; Att’y $4; writ and seal 63 cents.” On this a levy on land was returned by Defendant; the Court was of opinion that this paper was inadmissible, and could not support the first count in the declaration ; and, on the second count, the Court held, that the bond taken by the Defendant from Benjamin Smith, was pro-*8pcrly made returnable to Brunswick County Court, and. the Plaintiff was non-suited. The case stood before this Court on a rule for a new trial, and was submitted with-ouj. al.gliment.

Taylor, Chief-Justice.

Hall, Judge.

The reason assigned for not executing •the writ of execution is, that no copy of the bill of costs of the fees in which the execution issued, written at length and without any abbreviation, was annexed to the execution, as the act of 1784, ch. 223, see, 8, requires. This act was passed for the purpose of ascertaining the fees due to the clerks, sheriffs, and other officers j and that part of it, above recited, speaks altogether of the costs that may be due, and directs how they shall be made to appear, but is silent as to the execution in other respects 3 admitting the execution to be void as to the costs, it ought to have been executed in other respects, as if no costs had been due, or, as if the bill of costs had been annexed as the law requires. This seems to have been decided to be the construction of the act many years ago. — (2 Hay. 86.) I, therefore, think a new trial ought to be granted on the first count, for not obeying the writ of execution.

And of this opinion was Judge Henderson.