Stuart v. Fitzgerald

Decided June 15, 1813

Supreme Court of North Carolina · decided 1813-06-15

<p>'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.</p> <p>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.</p>

Cited by 2 later decisions — most recently January 1813

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1813-06-15

View the full empirical analysis of this case →

Haii, Judge,

¶1delivered the opinion of the Court £

¶2It 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.

¶3He 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.