State ex rel. Garlick v. Jones, 48 N.C. 404, 3 Jones 404 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 404, 3 Jones 404

The State on the relation of JOHN W. GARLICK et al. vs. RICHARD M. JONES et al.

A justice of the peace has no authority under the Act of 1741, Rev. Stat. ch. 24, sec. 10, to appoint a special constable to execute a fieri facias.

Tms was an action of di^t, tried before Dick, Judge, at tbe last Spring Term of Orange Superior Court.

The relators of the plaintiff declared on the sheriff’s bond against him and his sureties, and alleged as a breach, the failure to collect a debt under a fi. fa. in his hands.

The facts submitted in a case agreed are, that one Breese, a deputy of the sheriff Jones, had in his hands an execution in favor of the relators of the plaintiff for $47,73, against one S. D. Schoolfield, which he might have levied on a quantity of ice, some shingles, plank and scantling, and failed so to do. It is agreed that the said Breese desisted from executing the property above stated, from a belief that it was already aj>propriated by the prior levy of an execution. As to this execution, the facts are, that the warrant on which it was obtained was not served by a regular officer, but by one Samuel Hanner; and after service of the paper on Schoolfield, a judgment was rendered in favor of the plaintiff, one Freeland, for $-; an execution was issued on this judgment, and the same was put into the hands of Hanner; besides being directed on the face of it to Samuel Hanner, the execution was endorsed thus: “ for the want of an officer, I hereby deputise Samuel Hanner to execute this execution,” and signed. This execution was levied on the property in question, before the execution of the relators came into the hands of Breese, and it was duly taken into possession by Hanner, and kept by him until he made sale of the same. Upon this statement of facts, it was agreed by counsel, that if his Honor should be of opinion, that the execution in the hands of Hanner was duly levied, and that under it, the said Hanner had a right to hold the property, .that a nonsuit should be 'entered; but if his Honor should be of a contrary opinion, judgment was to be entered for the plaintiff.

Upon consideration of the case agreed, his Honor, being of opinion with the defendants, ordered a nonsuit. From which judgment the plaintiff appealed.

Bailey and Fowls, for plaintiff.

Norwood, for defendants.

Pearson, J.

It is a matter of public-policy, that writs and, all other process in the administration of law, should be executed by regularly appointed and known officers; so that there may be some guarantee of fitness for the place, and some degree of responsibility secured, and that by practice a familiarity with the duties of the office may be acquired; but more than all, that the authority of the office should be well known, and readily submitted to, by all with whom it may have to deal.

The necessity arising out of sudden emergencies, induced the colonial Legislature, as early as Iff41, to make an exception to the general rule, and the provision of the statute then enacted, has been brought down to us by the several revisáis. “ For the better executing anyprecept or mandate in extraordinary oases, it shall and may be lawful for any justice of the peace to direct any such precept or mandate, in the absence of, or for the want of, a constable, to any person,” &c.

This being an exception, of course the general rule must prevail ; and nothing comes within the exception, unless it fall within the cases intended to be provided for, and the mischief to be remedied.

There is a marked distinction between process in civil and in criminal proceedings ; in'the one, there is danger that the party suspected may become a “ fugitive from justice;” hence a necessity for his immediate apprehension; the officer or person deputed to execute the precept or mandate, is required to arrest the party and have him forthwith before some committing magistrate, to be dealt with according to law; in the other, there is no such imminent cause for haste, and the writ or other process simply commands the officer to arrest the party and him safely keep, so as to have him at the next term of the Court; or to execute the process within thirty or ninety days (Sundays excepted). At common law the officer might, at his discretion, take bail or refuse to take it; and bail below was a bond payable to the officer. Here, we see at once, that in regard to the execution of writs and civil process, different considerations are involved, and objections to the action of any but regularly appointed and known officers present themselves other than such as apply to the execution of precepts or mandates for the arrest of persons charged with the commission of felonies and offences against the public. In regard to debtors who abscond, or otherwise conceal themselves, so that the ordinary process of the law cannot be served on them, the statute in reference to original attachments gives a remedy; and the idea that a common writ of fieri facias, which is to be executed within ninety days, is a precept or mandate in extraordinary oases within the meaning of the statute, cannot be entertained; there is no reason to presume that “the absence of, or want of a constable” to levy upon and hold possession of property until such time as it can be sold according to law, presented an exigency for which it was the intention of this statute to provide, any more than the absence or want of a sheriff in regard to writs and other process issuing from the Courts.

Sheriffs and constables may make deputies -whenever the press of business requires it, and they are liable under the maxim respondeat superior for all defaults of their agents in civil proceedings. Why should creditoi’s and debtors be unnecessarily exposed to irresponsible persons appointed by a single justice of the peace ? No reason can be assigned for it, and in fact, such was not the intention of the statute.

We have, therefore, come to a conclusion differing from that of his Honor : We think that the defendant had a right, and was bound, to levy upon the ice and shingles, &c., in the possession of the debtor Schoolfield, notwithstanding the pretenee of claim set up by Ilanner, under his unauthorised deputation.

Judgment of non-suit set aside, and judgment for the plaintiff according to the case agreed.

Per Curiam.

Judgment reversed.