State v. Latham, 51 N.C. 233, 6 Jones 233 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 233, 6 Jones 233

STATE v. CHARLES LATHAM.

Proof that a writ was directed by the clerk to a sheriff of another county, and mailed in due time to reach him in the regular course of the mail, was Held to be sufficient evidence to authorise the entering of a judgment for an amercement, nisi, if there be no return of the process. *

Motion for an Amersement, nisi, against the sheriff of "Washington county, heard, before Shbpheed, J., at the last Fall Term of Chowan Superior Court.

The Clerk of the Superior Court of Chowan swore that he issued a capias against one Jeremiah Jones, on the 13th of April, 1858, returnable to the Fall Term, ensuing, (which happened in October following,) which writ was directed to the sheriff of "Washington county, at Plymouth, and not returned; and, thereupon, the solicitor moved for an amercement, nisi, against the said sheriff; but it not appearing that the said writ had ever come to the hands of the sheriff, the motion was refused. Whereupon the solicitor appealed.

Attorney General, for the State.

II. A. Gilliam and Winston, Jr., for the defendant.

Pearson, C. J.

It is not expected or required that the clerks of the several courts should employ special messengers to carry writs and other process to all of the counties in the State in order to prove a delivery thereof to the sheriff. How many special messengers would it be necessary for the clerk of this Court to employ, to enable him to send out all the writs issuing from a single term within the time required by law? Of necessity, therefore, the courts must act upon a presumption of the regularity of the mails, and upon proof that a writ, directed to the sheriff of a county, was duly mailed, in time to reach him by the regular course of the mail; the Court must act on it, as prima facie evidence, that the "writ came to his hands, so as to enteran amercement nisi, if there be no return. The officer is allowed to rebut the presumption, and to discharge himself, as upon a motion for a rule against him, by making affidavit, that the writ did not come to his hands.

This is a full reply to the suggestion that no one ought to be required to prove a negative. Certainly, he has no ground to complain, if permitted to do so, by his own oath. Such has been the uniform practice of this Court, and we had supposed it was general on the circuits, until the present case was sent np.

There is error. Judgment reversed. This will he certified to the end that a fine nisi may be entered in the Court below.

PeR CuRiam, Judgment reversed.