Opinion
(June Term, 1841.)
When the proceedings before a magistrate, upon which he issues an execution, are annexed to the execution, and it is apparent from them that there is no judgment authorizing an execution, the constable who has the execution must take notice of that fact, and will be guilty of a trespass if he proceeds to make a levy under the process.
ACTION of trespass vi et armis, tried at Spring Term, 1841, of MARTIN, before Settle, J. The action was brought to recover damages for seizing and selling the plaintiff's horse. It was admitted by the defendant that he did seize and sell the horse, but he insisted that he was justified in so doing by process, a copy of which is inserted below; and, by consent of the parties, the jury found all the issues in favor of the plaintiff, and assessed his damages at $100, subject to the opinion of the court as to the defendant's liability. His Honor being of opinion that the defendant was justified under the process, set aside the verdict, and the plaintiff, in submission to the opinion of the court, suffered judgment of nonsuit to be entered against him, and appealed to the Supreme Court.
B. F. Moore for plaintiff.
J. H. Bryan for defendant.
COPY OF THE PROCEEDINGS AND PROCESS UNDER WHICH THE DEFENDANT INSISTED HE WAS JUSTIFIED.
STATE OF NORTH CAROLINA, } Martin County. }
To any lawful Officer to execute:
You are hereby commanded to arrest the body of Arnold Whitfield (if he be found in your county), so that you have him before some justice for said county, at Hamilton, on 4 May, 1839, then and there to answer John J. Lancaster, in an action of debt due by account to the amount of $60.
Given under my hand and seal, this 15 April, 1839.
JOHN LONG, [J. P.]
(474) On the back of this warrant were the following indorsements: Executed by ROBERT JOHNSTON.
Judgment against the defendant for $10 and costs. 4 May, 1839. L. JOHNSTON.
An appeal craved and granted to the county court next, by giving for security ASA PRICE.
Attest: L. JOHNSTON, J. P.
Whereas an appeal has been prayed and granted, and a failure on the part of the justice of the peace, I therefore grant an execution and require that you execute and sell as the law directs of the goods and chattels of the defendant for the amount of the within principal and costs. THOMAS JONES, [J. P.]
This 28 October, 1839.
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 proceeding, which showed the defendant that there was no judgment to authorize 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 nonsuit must therefore be set aside, and judgment must be rendered for the plaintiff pursuant to the verdict.
PER CURIAM. Judgment accordingly.
(475)