Hyatte v. Allison, 48 N.C. 533, 3 Jones 533 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 533, 3 Jones 533

WILLIAM HYATTE vs. JOHN B. ALLISON.

A. writ cannot be legally returned on Thursday of the term to which it is made returnable.

A sheriff may be amerced at a subsequent term to that at which the process W'as returnable, for not having made his return at a previous term.

Sciric Facias to make absolute an amercement nisi, heard before his Honor, Judge Manly, at the Fall Term, 1855, of Haywood Superior Court.

The defendant pleaded nul tiel record; that he made due return of the process issued to him; and specially, that the return in the ease was made to, and received at, the return term thereof, and acquiesced in by the plaintiff.

The record states that the Court adjudged there is such a record as that mentioned in the sci. fa.; that a jury was empannelled, who found all the issues in favor of the plaintiff.

The parties below made a special case agreed for the decision of his Honor, viz: That a eqpias ad respondendwn issued in favor of Wm. Ilyatte against Thomas Browning; that the same came to the hands of the defendant’s deputy, twenty days before the Spring Term, 1851, of the Court to which it was returnable, and the said writ was not returned till Thursday of that term.

At the next term of the Court, to wit, at Pall Term, 1851, an affidavit was filed stating the facts, and a judgment nisi ; was entered against defendant for $100, upon which this sci. fa. issued.

The defendant contended,

1st. That he was not obliged to return the writ before Thursday.

2nd. That the Court might indulge him ; and this was to be presumed, as the writ was then returned and docketed.

3rd. That the nisi judgment could not be entered at the term subsequent to that of the Court at which the process was returnable.

The Court, holding these objections to be untenable, gave judgment for plaintiff, from which the defendant appealed.

Baxter, for plaintiff.

N. W. Woodfm, for defendant.

Nash, C. J.

There is no error. The deputy sheriff had in his hands a writ, issued at the instance of the plaintiff against Thomas Browning, returnable to the Spring Term, 1851, of Ilaywood Superior Court, which writ was returned by him on Thursday of the said term. At the Pall Term of the Court, a judgment nisi was rendered against the defendant for the sum of one hundred dollars, for not having returned the writ according to law.

The first objection raised by the defendant cannot be sustained. By 53 sec. of the 31 ch. of the Rev. Stat., it is enacted that, “ All writs and other civil process, except subpoenas, returnable immediately, shall be returned the first day of the term to which they are returnable,” &c. By this section it is made imperatively the duty of the officer to return the writ on the day of the term designated, which is in law the return day of the term; and it is as much a neglect of duty on his part not so to return it, as not to return it at all.

As to the second objection; without enquiring into the power of the Court to permit a return on any other day, it is sufficient to say, there is nothing in the record to show, that the return on Thursday was the act of the Court; all that the record shows is, that the writ was returned on that day. The principle of “ rite acta” does not apply.

The third objection is alike untenable. By the 61 sec. of the same Act, it is enacted that, “Every sheriff, &c., who shall fail duly to execute and return all process to him directed, shall be subject to a penalty of one hundred dollars, &e., to he paid to the party grieved by order of the Court, &c., to which the same is returnable, unless the sheriff, &c., can show sufficient cause to the Court for his failure at the Court next succeeding such order.” The Act does not require that the judgment nisi shall be rendered at tlie same term to which the writ is returnable, hut to the Court to, which it is returnable, and the officer has until the next term succeeding the order, to make his excuse. Halcombe v. Rowland, 8 Ire. R. 240.

Per Curiam.

Judgment affirmed.