Whitfield v. . Johnston

23 N.C. 473

• Court: Supreme Court of North Carolina
• Decided: June 5, 1841
• Status: Published

Opinion

Daniel, J.

It is true that a constable is justified by an execution, issued by a competent tribunal, in doing all acts commanded by the execution. But in this case the execution was not only attached to the proceedings, which shewed the defendant that there was no judgment to authorise the justice to issue the execution, but actually recited that the judgment had been vacated by appeal. He saw, then, that the execution was an act done, which was beyond the power of the justice, and that it was void. The defendant was aware that the justice had no authority to issue this execution^ and being thus apprised that it was void, we think that he is not justified under it. The judgment of non-suit must therefore be set aside, and judgment must be rendered for the plaintiff pursuant to the verdict.

Per Curiam, Judgment accordingly.