Governor Ex Rel. Armstrong v. Bailey

10 N.C. 463

• Court: Supreme Court of North Carolina
• Decided: June 5, 1825
• Status: Published

Opinion

Tayeor, C. J.

delivered-the opinion of, the Court.

The question made on the trial below appears from, the record to have been, whether the indorsement on the paper containing the warrant and judgment ought to he considered as an execution; for if it be so considered, the receipt of the money by Judge being of posterior date, was made in his official character, and comes within the penalty of the bond; The same question arose in For- sythe v. Sykes, (2 Hawks 54.) where, the execution issued by the magistrate was almost literally the same as this; and it was sustained by the Court, upon the principle that the proceedings of magistrates were entitled to a liberal construction, when the exceptions related merely to regularity and form, in that case, Lanier v. Stone, (1 Hawks,) was referred to., where the Court had determined that an irregular execution may be cured and corrected by the retura of the constable. There is nothing in this caso, as we read the record, that should induce us to depart from former decisions. Let there be a new trial.

Judgment reversed.