Thompson v. Kirkpatrick, 50 N.C. 366, 5 Jones 366 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 366, 5 Jones 366

DANIEL F. THOMPSON v. HUGH KIRKPATRICK.

Either of the two copies of an order appointing an overseer of a road, directed by law to be issued by the clerk, is a proper and sufficient evidence of the overseer’s appointment.

This was an action of debt for a penalty, tried before Saust-dees, J., at the last Spring Term of Orange Superior Court.

The plaintiff declared as an overseer of a road, against the defendant, for failing to send his hands to work upon the public road after due and sufficient warning. The only question was, as to the competency of the evidence to establish the plaintiff’s appointment as overseer; to do this, the plaintiff introduced an order, which had been duly issued by the clerk of the county court, it being the copy which had been served on him. The clerk of the court produced a book, headed “ road docket,” which he proved belonged to his office, and was used for the purpose of recording the road districts, and the appointment of overseers. The entry in this book, which was relied on, was objected to, as being loose and unintelligible. (A further description of it is made unnecessary, by the view taken of the case by this Court). The evidence was admitted by the Court, and the defendant excepted.

Yerdict for the plaintiff. Judgment. Appeal by the defendant.

Bailey and Bowie, for the plaintiff.

Bihillyps, for the defendant.

Pearson, J.

The county court is directed to appoint overseers of the public roads, and the cleric is directed to furnish the sheriff with two copies of each order making the appointment ; one is to be delivered to the overseer, the other is to be returned to court, “ with the date of its reception, and the date of the service, endorsed thereon.” The purpose of the latter is, to enable the State to charge the overseer, if he neglects to keep the road in repair. The former is the commission of the overseer, and its purpose is to enable him to prove his appointment, so as to recover against any person who may fail to work on the road when duly notified. These copies are proper and sufficient evidence of the appointment; like letters testamentary, or the certificate of the ordinary, or clerk of the county court, of liis appointment of an administrator, The case states, that the plaintiff offered in evidence one of the copies. It certainly could make no difference, that it was the copy which the sheriff had returned to court; nor ought the plaintiff to have been prejudiced by the omission of the sheriff to make the proper endorsement on it$ as it was proved that a copy had been served upon the plaintiff. So, we think the fact of his appointment was duly established, and the introduction in evidence of the “ road-book,” or rough memorandum, kept by the clerk, was unnecessary ; of course, we need not notice the objections made to it.

Pee CueiaM-, Judgment affirmed.