Opinion
June Term, 1824.
An execution not having indorsed thereon the cost in words, at length, is yet good as to everything but costs, and must be obeyed accordingly.
APPEAL from Norwood, J., at NEW HANOVER. Action on the case. The declaration contained two counts. The first charged that (7) the plaintiff recovered, in NEW HANOVER County court, a judgment against Benjamin Smith, on which a writ of ca. sa. issued, directed to the defendant, as sheriff of Brunswick County, who neglected to execute the same, and falsely returned that Benjamin Smith was not to be found in his county.
The second count charged that plaintiff sued out one other writ of ca. sa. against Benjamin Smith, directed to the defendant as sheriff of Brunswick County, who, after 15 February, 1821, took and arrested the said Benjamin Smith by virtue thereof, and afterwards, to wit, on 1 May, 1821, suffered the said Benjamin Smith to escape and go at large out of custody, and made a return as follows: "Writ executed by arresting and taking defendant into my custody, who was released upon giving bond and security to comply with the requisitions of the act of 1820, passed for the relief of honest debtors. Bond made returnable in pursuance of said act, to the county court of Brunswick at July Term, 1821."
On the trial below before Norwood, J., the plaintiff offered in evidence a paper purporting to be an execution, at his instance, against Benjamin Smith, on which, among other indorsements, was the following: "Bill of costs: Clerk, $7.68 1/2; tax and duty, $2; sheriff, $1.20; attorney, $4." This was objected to, and rejected by the judge, on the ground that it was not an execution, but void as having no legal bill of costs attached to it. Plaintiff then offered in evidence a preceding execution on the same judgment, and the indorsement of costs thereon was as follows: "Process and bond, $1.60; determination, 75 cents;continuance, 30 cents; tax and duty, $2; sheriff, $1.20; attorney, $4; writ and seal, 63 cents." On this a levy on land was returned by defendant. The court was of opinion that this paper was inadmissible, and could not support the first count in the declaration; and, on the second count, the court held that bond taken by the defendant from Benjamin Smith, was properly made returnable to Brunswick County court, (8) and the plaintiff was nonsuited. The case stood before this Court on a rule for a new trial, and was submitted without argument.
The rejection of the execution as evidence proceeded on a misconstruction of the act of 1784, ch. 223, which relates only to executions for costs; and supposing the last sentence of the eighth section to require an extended bill of costs to be annexed to all executions, yet it cannot be so construed as to make it illegal in toto to execute the writ without it; for, if the execution be sufficient in other respects, the sheriff is bound to obey it, so far as relates to the judgment, exclusive of costs. On this count, therefore, there must be a new trial.
HALL, J. The reason assigned for not executing the writ of execution is that no copy of the bill of costs of the fees in which the execution issued, written at length and without any abbreviations, was annexed to the execution, as the act of 1784, ch. 223, sec. 8, requires. This act was passed for the purpose of ascertaining the fees due to the clerks, sheriffs, and other officers; and that part of it above recited speaks altogether of the costs that may be due, and directs how they shall be made to appear, but is silent as to the execution in other respects. Admitting the execution to be void as to the costs, it ought to have been executed in other respects as if no costs had been due, or as if the bill of costs had been annexed as the law requires. This seems to have been decided to be the construction of the act many years ago. Taggert v. Hill, 3 N.C. 86. I, therefore, think a new trial ought to be granted on the first count for not obeying the writ of execution.
And of this opinion was Judge HENDERSON.
PER CURIAM. New trial.
Cited : Coltraine v. McCain, 14 N.C. 312
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