Boyden v. Odeneal, 12 N.C. 171, 1 Dev. 171 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 171, 1 Dev. 171

Nathaniel Boyden & wife v. John Odeneal & wife.

From Stokes.

The indorsement of an attorney on a. writ, is only prima facie evidence-of the time when it issued.

Case for words tried before Norwood, Judge, and on the ¡rial, the only question was, whether the Plaintiff was barred by the statute of limitations. Tbe entry in the margin of tbe writ was in these words, “issued the 18th day of July 1823,” and the Defendant offi-red to prove that in Fact the writ was not issued until the 28th of September, 1823. This evidence was opposed on the part of the Plaintiff, who proved that the writ was filled up and issued by T. Lacy, an attorney of the Court below, and contended that the entry in his handwriting was conclusive of the time of issuing the writ, of which opinion, was the presiding Judge, and he rejected the evidence offered by the Defendant. As the action accrued, with sis months before the 18th of July, tbe Plaintiff bad a verdict, and a new trial being refused, the Defendant appealed.

Gaston, for tbe Appellant,

cited Brown v. Van Bowser (10 Johns. Hop. 51. Middleton v. Manuceptors of Sylvester 1 Sid. 2i6, uiul Grijford v. Wood-gate, IX Mast. 296.)

Tayuor, Chief-Justice.

The point to be decided is, whether the Defendant may prove that the indorsement on the writ as to the time of issuing it is Wrong, and that in truth it was issued several mouths later. The aci of 1777, sec. ] 3, made it the duty of the clerk or at torney issuing original process, to mark thereon the day, on which the same shall be issued-, and thus duty is enforced- under a heavy penalty. The fact as to the time when a writ issued, is all important in cases where the statute of limitations is relied upon,- sinee the action must, be commenced or brought within the different periods specified after the canse of action accrues. The plev in this case is. that the D.‘.ie.,ui-int was not guilty within six months befori the issuing of the writ, then when the writ did issue, is the very point in dispute, and 1 apprehend it never could be the intent of the Legislature, to make either the inadvertent or the designed untrue indorsement upon the writ, conclusive evidence of the fact.'

If the indorsement of the writ had been confided to the Clerk alone, the argument would be something stronger in favour of making it conclusive evidence of the time, “ for no one can say that a writ was purchased at ano* tlier time than it bears date, for to aver that it was antedated, tends to the discredit, of the officer of record,” 2 Plow. 492. But this only goes to the mode of redress, the party is not finally concluded by the false date, but may have relief in a summary way, (2 Burr. 966.) But it would be an alarming principle to establish, that the Plaintiffs Attorney can prevent the bar of the statute of limitations, and thus finally conclude the Defendant by antedating the writ. I am of opinion, that the Defendant ought to have been permitted to controvert the in-dorsement on the writ, which is only prima fade evidence against him, and that there should be a new trial.

Hair, Judge.

By the act. of 1777, (Rev. c. 115, s. 13,) it is made the duty of the c!ei*k or attorney issuing process, to mark thereon, the day on which it shall be issue(|. When process has been issued by an attorney, his indorsement thereon of the day on which it issued, is prima Jade evidence, but no more.

The Legislature did not intend to give to such an in-dorsement the force of a record. In the present case, the Plaintiffs proved, that the indorsement was made by T. Lacy ; it was surely competent for the Defendant to prove (and by evidence of the same grade) that the in-dorsement was not made by T. Lacy, but that it was made by some other person, or that if it was made by T. Lacy, he was mistaken as to the day on which the writ issued. It seems to me it was a question proper to be decided by such evidence.

Therefore, I think the rule for granting a new trial should be made absolute.

Per curiam — Judgment reversed and rule for now trial made absolute.