Forsythe v. Sykes, 9 N.C. 54, 2 Hawks 54 (1822)

June 1822 · Supreme Court of North Carolina
9 N.C. 54, 2 Hawks 54
Forsythe v. Sykes and others

Forsythe v. Sykes and others.

From Mecklenburg.

When a judgment smd execution are written on the same paper with, the warrant issm <1 by a Magistrate, and the warrant is properly directed, such due •■‘ion will also extend to the execution, and it is not necessary to repeat it in the execution.

This was an potion of trespass for taking ten barrels of tar. -Plainin' on the 8th of January, 1820, purchased the tar of one Baggoi, at the kiln where it was made, and Beth «danta afterwards took it away. The Defendants, by way of justification, offered in evidence, proof that Sykes was a Constable, and that the other *55BofeU'iaJsts acted ass bis assistant4:, in carrying into of-feet an execuíiou ng’.iiust Baggoi’» properly. The warrant against P/iggot appeared io have been executed, aud on it wore tine following endorsement.-}:

44 Tb» !'!;!Íuí¡íÍ' pioved In:: (tel >í tbí the :;ii.d of fauv dollar» and twenty rail».--• SN'Ctanljei' IGth, 1819.” (Sigiic.’) Tun. IViylar, J. Is.

!t rl r,-\-s/ie aud r:ell as; much, oí’the Slofe’itlaul’» pnopeily as will satisfy the abeve judgment and cost1',.---19Ü1 llecciuk';?, 1820.” (Signed) Tihui.-is Polk, J. P.

“ikevied 0:1 íes» baldéis of íal’. — lSHli 'Üen.V, 1319.”

Defendant? produced also another warrant against Baggoí, with the following endorsements:

“ jiulgiuont eg’auist the llefciKfcir!, v>: the sum of twenty-four dol-íaos and bte cents, before iuc. — -Jtsniuuy 7 th, 1820.” (Signed) I). Curiliberlsoa.

“ Ilnemtc and .sell according to Ian. — Jruuaty ?lb, 1820.” (Digu-ed) D. Curiiiboitson.

“¿.evict! on leu barrel:: of inr — '/ill January, 1820.”

Defendants tasa offered to shew that a levy was made on tbc tar, rntiler tbo foregoing executions, prior lo a sale of it to Ike. I’iaiBtuiu

Tbo Court below rejected tito evidence, anil would not permit tbo executions to be read, because they were not directed lo a ** GfuviBi Contdablo, or other lawful officer.*’ 4 verdict was returned for the BleintiiF, a new trial \k as refused and judgment rendered , whereupon* IJcieiidaais appealed.

Taylor, Chief-Justice.

The objertton made to the executions is, that they wore not directed as the law reunites. It is not ídaifíl in the record whether the judgment was mitten on the same paper with the warrantor not, but it is to be presumed that it was, since it is not probable that another Magistrate would hate issued an execution «pon the judgment alone, without seeing that, a. warrant had been returned, executed against the Defendant.

That a warrant was issued, and exeemied, appears frena the case, and that it was directed iu the manner re*56quired by law, seems plain from this, that no exception is taken to it on that ground. Assuming, therefore, that the judgment and execution were written on the same pap61. wjph the warrant, and that the latter was properly directed, it has been decided that such direction will extend to the other process, and that it is not necessary to repeat it in each one. It cannot be denied that the judgment and executions are loose and informal, but the law has prescribed no certain mode for the judgment,, and it cannot be expected that it should be entered up with the technical precision used in Courts of record. It must, from necessity, be upheld, if it be sufficient in substance. When a debt is proved before a Magistrate, it is a conclusion of law, that there be a judgment upon it, audit was only necessary to add the word judgment, and even without that, it was readily understood by the Justice who issued the execution. The executions are less exceptionable* for they refer to the lawr as the guide by which the officer is to be directed j and it has been held in the case of Lanier and Stone,* that where the execution directs the officer to levy upon goods and chattels, lands and tenements, it shall not be set aside if it appear, by the officer's return, that he has levied only in such manner as the law directs in the 19th section of the act of 1794.

That a fair and liberal construction should be given to the civil proceedings before a magistrate, is dictated by various considerations, and is made compulsory on the Court by the 16th section, which requires only that the essential matters should be set forth in the process.

Per curiam. A new trial is awarded.