Cockerham v. Baker, 52 N.C. 288, 7 Jones 288 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 288, 7 Jones 288

JOSEPH COCKERHAM v. JOSHUA BAKER.

Where a sheriff mailed an execution in time, by the ordinary course of the mails, to have come to the hands of the clerk, to whom it was directed, before the sitting' of the Court to which it was. returnable, it was Held he was not guilty of a breach of duty.

A sheriff cannot be amerced if he return an execution within the time prescribed' by law, though he fail to return the money,, levied thereon, into. Court, or pay it to the party, or his attorney.

This; was a Scire Facias against a sheriff” for failing to return process in due time, tried before Bailey, J., at Spring Term, 1859, of Surry Superior Court.

The defendant, Baber, was sheriff of the county of Ashe, and the process, in reference to which, the failure to return is alleged, was issued by the Superior Court of Surry and directed' to defendant, returnable to Spring Term, 1858, of that Court-, which Court commenced on Monday, the 22d of February, 1858. The sheriff mailed the execution in a stamped envelope, at Gap Civil, a post office'in the comity of'Ashe, on Wednesday, the 17th of February, five days before Court. The mail from Gap Civil to Dobson, the comity seat of Surry, leaves Gap Civil on Wednesday evening, and arrives at Dob-son on Saturday evening, and a letter mailed at Gap Civil on Wednesday, would reach Dobson on Saturday evening, unless delayed by accident. The execution did not arrive during the term, but reached Dobson on Monday, two days after the Court, and was endorsed, satisfied, but no money was paid by the sheriff.

The Court instructed'the jury, that if the execution was mailed on Wednesday, at Gap-Civil, and by the regular course of the mails, a letter so mailed would, without accident, arrive at Dobson on Saturday evening following, although it did not so arrive, that would amount to a valid return.

Yerdict for defendant. Judgment. Appeal by plaintiff. •

Fowle, for the plaintiff.

Boyden, for the defendant.

Battle, J.

It has frequently been decided by this Court, after argument and full consideration, that if it be made to appear that a clerk has sent a writ to the sheriff of another county, enclosed in a stamped envelope, in due time to reach him in the regular course of the mails, twenty days before the sitting of the court, to which it is returnable, it is sufficient to authorise a judgment nisi for an amercement for the non-return of the process; State v. Latham, 6 Jones’ Rep. 233. If then, the mail can be used as a medium, by which process can be transmitted to a sheriff, so as to charge him with its reception, it would seem that he ought to be allowed to adopt the same means for making his return, at least so far as the drae time of the return is involved. Accordingly, in the case of Waugh v. Brittain, 4 Jones’ Rep. 470, we intimated that lie might do so, and that he would be excused if the letter, endorsing the process, with his return upon it, was properly mailed in due time. The instruction of his Honor to the jury, in the Court below, was in accordance with this opinion, and we are unable to discover any error in it.

The question of the return of process, in due time, seems to have been the only one raised on the trial, but in the argument here, the counsel for the plaintiff contended, that there was not a “ due return” of the process as required by the 17th section of the 105th chapter of the Revised Code, because, though returned “ satisfied,.” the money was not sent with it, nor paid into the clerk’s office, nor to the plaintiff or his attorney. If this question were before the Court for the first time, we should be strongly inclined to hold this objection to be fatal to the return. The writ, in its terms, demands that the sheriff shall have the money levied before the court,, and it would seem, a return of “ satisfied,” without the “ satisfaction,” is but a mockery. But, at a very early period, a different construction was put upon the act of 1777, (chap. 118, sec. 6, of the Rev. Code of 1820,) and as that act has been twice re-enacted in the same terms, we must consider that construction as settled; see Davis v. Lancaster, 1 Murph. Rep. 255 ; and see also, 1 Rev. Stat. ch. 109, sec. 18, and the Rev. Code, ch. 105, sec. 17, in both of which, there is a marginal reference to that case, and according to it, a sheriff cannot be fined, if he return the execution within the time prescribed by law, though he fail to return the money, levied thereon, into Court, or pay it to the party, or his attorney.

Per Curiam,

Judgment affirmed.