State Ex Rel. Little v. Wall

24 N.C. 272

• Court: Supreme Court of North Carolina
• Decided: June 5, 1842
• Status: Published

Opinion

Gaston, J.

The principles, which we felt it our duty to sanction in the case of the State on the relation of McRae’s Administrators against Wall and Garrott (supra p. 267) lead us necessarily to the affirmance of this judgment also. Sedbury never was appointed constable, as far as we see. The order of the court, at January Term, 1839, was not an appointment; indeed the court could not then have made an appointment, because the power is,, in express terms, restricted to a court consisting of seven justices. The alleged resignation of his office at the April Term following, was perfectly nugatory, even if the court had power to receive the resignation, (of which power nothing is said in the act), because there was no office to be resigned. Now it may be that the subsequent entry on the record “ On motion, S. H. Sedbury was again permitted to renew his bond as constable, by giving as security Stephen Wall and Stephen Parker his securities” was a misprision of the clerk, and, in truth, upon the supposed resignation of Sedbury, he was then appointed constable to fill a vacancy, which had been caused by a failure of the people to elect before the preceding term. But the record must speak for itself, and we cannot make that an appointment which purports not to be one.

Per Curiam, Judgment affirmed.