Stuart v. Fitzgerald, 6 N.C. 255, 2 Mur. 255 (1813)

June 1813 · Supreme Court of North Carolina

6 N.C. 255, 2 Mur. 255

JUNE TERM, 1813.

James Stuart v. James Fitzgerald.

From Surry.

'Vo’ a scíré facias against A. as Sheriff, to subject him as special bail, of B. he pleaded among other pleas, that he -was not Sheriff -when the -writ -toas executed. He had returned the writ “ executed” to August term 1807 of the County Court, and he was elected at May-term 1806, but did not qualify and give bond until August term thereafter, and in the election of Sheriff in that County, that had been the uniform practice. Held, that having qualified and given bond within a year preceding the return of the writ, and having acted as Sheriff in executing the writ, he shall be deemed Sherifl^ and shall not be permitted to contradict his own acts.

Parol evidence admitted to prove that a ca. sa. issued, and that the Sheriff returned on it, “not found,” and that it was lost or mislaid.

This was a scire facias against the defendant, as Sheriff of Surry county, and special bail of Martin Armstrong. The pleas were “ JV’ul tiel record, surrender of the principal,” and a special plea, “ that the defendant Was not Sheriff at the time the writ was executed.”

The Plaintiff sued out a writ against Martin Armstrong, from the county court of Surry, returnable to August term, 1807, bat it was not returned until November term following, when it was returned into the office with the following indorsemont, via. “ Executed, James Fitzgerald.” No bail bond was taken by the giie,.¡ff. a judgment was recovered by Stuart against Armstrong, and thereupon Stuart sued out this scire fa-cias, to subject the Defendant to the payment of the judgment.

The Defendant was elected Sheriff of Surry at May term, 1806, and qualified,‘and gave bond with security, at August term following.- At May term, 1807, (at which time the writ against Armstrong was issued, and placed in the Defendant’s hands,) Thomas C. Burch was elected Sheriff and qualified, and gave bond at August term following. It appeared from the evidence of Joseph Williams, sen. Clerk of Surry County Court, that the practice of electing the Sheriff ;n May, and of liis qualifying in August, prevailed as far back as the time when the law required the Sheriff to be commissioned by the Governor, and that the practice has continued in Surry ever since. It appeared further, by his evidence, that the Sheriff elected in May, did not enter upon the duties of his office until he qualified, and gave bond at August following. It appeared by an entry oil the docket of November term, 1807, that the writ was then returned by consent of Armstrong and of the Defendant. And the deputy clerk, Joseph Williams, juu swore that when t.he defendant returned the writ, he observed, that he had executed it in due time, but had •failed to return it at August term, because it was mislaid.

No ca. sa. against Armstrong could be found in the-office ; but it appeared from an entry on the execution docket, that a capias did issue from August, returnable to November term, 1809, and that the Sheriff’s return thereon was “ not found.” It appeared also, from the evidence of the Clerk and Sheriff, that such a ca. sa. had been issued and returned.

The Court adjudged that there was such a record as that mentioned in the set./a. the Jury found the issues of fact for the plaintiff, and the Court gave judgment. A rule fora new trial was obtained upon the grounds, 1st, That the Court was in error in adjudging that there was such a record. 2d. That parol evidence was received to supply the' record. 3d. Tiiat the Jury ought to have found that he was not Sheriff when the writ was execut--ed. The case being sent to this Court,

Haii, Judge,

delivered the opinion of the Court £

It has been objected for tiie Defendant, tiiat at the time the writ was executed by him, lie was not Sheriff of Surly County. It is not necessary to examine critically, whether lie was regularly in all respects, chosen Sheriff for that year 5 because it appears, that lie qualified by taking the oath of office, and acted as Sheriff of the County during that time, and in that character returned the writ in question. He shall not now be permitted to contradict his own, acts.

He objects that the ca. sa. which issued against his principal, is not produced. It appears from the Clerk’s execution docket, that such writ issued and was returned, “not found.” And from the Oaths of the Clerk and Sheriff, tiiat such a writ was in the office, but had been taken out or mislaid* Let the rule for a new trial be discharged.