Hunter v. Kirk

11 N.C. 277

Opinion

Hale Judge,

delivered the Court’s opinion.

Although the Sheriff does not swear positively to the execution of the process, yet he states that he verily believes he did execute it. Indeed he is a sworn officer* and his return cannot be contradicted by the Defendant’s affidavit.

But the Defendant states, that he believes he has a good defence to make, on behalf of his intestate, that he did not make it, because he was ignorant that any suit was depending against him. — I think the ends of justice would be better answered by granting a new trial, than by dismissing the Certiorari.

We are therefore of opinion, that a new trial should be granted.

Judgment reversed,