{
  "id": 8685987,
  "name": "The Governor for the use of the State Bank v. Allen Twitty & others",
  "name_abbreviation": "Governor ex rel. State Bank v. Twitty",
  "decision_date": "1827-06",
  "docket_number": "",
  "first_page": "153",
  "last_page": "157",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Dev. 153"
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    {
      "type": "official",
      "cite": "12 N.C. 153"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "2 Hawks 61",
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      "reporter": "Hawks",
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      "cite": "2 Hawks 4",
      "category": "reporters:state",
      "reporter": "Hawks",
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      "cite": "9 Johns. Rep. 263",
      "category": "reporters:state",
      "reporter": "Johns. Rep.",
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    {
      "cite": "4 Hawks 34",
      "category": "reporters:state",
      "reporter": "Hawks",
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        8681121
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      "cite": "2 Hawks, 1",
      "category": "reporters:state",
      "reporter": "Hawks",
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  "last_updated": "2023-07-14T19:44:07.907129+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "The Governor for the use of the State Bank v. Allen Twitty & others."
    ],
    "opinions": [
      {
        "text": "Hau, Judge.\nWhen this case came before the Court at a former term, (2 Hawks, 1) it was considered that the Plaintiff was not entitled to a summary remedy under the act of Assembly, by merely notifying the Sheriff and his securities, to show cause why judgment should not be entered against them, because Use- Sheriff\u2019s bond was not given pursuant to the act, and that Circumstance in the case, then disposed of it. I am sorry to be under the necessity of saying, that for a reason founded on the same principle, the case must now be disposed of. '\n\\Yc then decided, that as the bond was not taken as prescribed by the act, it was not void, but that the party gricted must have recourse to a common law remedy ; as with respect to the remedy, so it is with respect to parties, if not taken as the act prescribes, although made payable to John Branch, Governor, and bis successors, this action cannot be maintained on the bond in the name of the successor.\nAnother question was then somewhat examined relative to the Sheriff\u2019s return. Speaking for myself, I was too much influenced by the reasoning ou behalf of the securities, which lias since been adopted in McKellar, v. Bowell, (4 Hawks 34) without observing its total inapplicability to the case. There, the deciee was not per-mi Med to be received as evidence against the securities, because they were not parties to it, and because the <\u2018\\i- . . deuce on whirl\u00bb it rested, might again be brought before the Court, when they became parties in any other suit; and so in this case, it was said the Sheriff\u2019s return was not conclusive evidence \u2014 that the question still was open liad the Sheriff in fact, received the money, although his return stated that he had. But I think the Sheriff\u2019s re<turn conclusivo of the question, because as long as that return stands, the Plaintiff has no remedy against the Defendant, for the amount which the Sheriff\u2019s return states to be received.\nBut I think for the reason first stated, this action cannot be sustained.\nPer Curiam. Judgment arrested.",
        "type": "majority",
        "author": "Hau, Judge."
      }
    ],
    "attorneys": [
      "Gaston, for the Defendants,",
      "Wilson, for the Plaintiffs,"
    ],
    "corrections": "",
    "head_matter": "The Governor for the use of the State Bank v. Allen Twitty & others.\nFrom Rutherford.\nThe return \u00f3f a sheriff that a fi. fa. is satisfied is conclusive upon his sureties in an action on ins u\u00ediiobC\nA sheriff\u2019s bond payable to .\u2018he Governor and his successors in a sum different from that directed by l;uv, cannot be sued in the name of the successor. ,\nThe writ and declaration were in debt in the name of t( Gabriel Holmes, Governor, &c. ami successor of John Branch, hue Governor* he.\u201d lor the sum of five thousand pounds, and the action was brought on the official bond given by one Alley, and the Defendants his sureties, upon Alley\u2019s appointment to the office of Sheriff of Rutherford in the year 1820,\nOn the trial before his honor Judge Ruffin-, in order to prove a breach of the condition of the bond, the Plaintiff showed that the State Bank' obtained judgment against one Ledbetter and others, in March 1820, and issued execution thereon directed to Alley, which was by him returned \u201c satisfied in part by the payment to him of eight hundred dollars and it was proved that Alley refused to pay any part of the money either to the Plaintiffs in the execution, or into Court. .\nOn the part of the Defendants, it was proved that no part of the \u00a7300 was actually received by Alley after the execution came into his hands j but that Ledbetter not intending to defend the action, had on being served with the capias ad respondendum, paid that sum to Alley, to be applied to the payment of the judgment, when execution should issue, and the counsel for the Defendants insisted that this was not a receipt by Alley, in his official capacity, and that consequently,' there was no breach shown to support the action. The presiding Judge being of opinion, that this evidence had not varied the case, directed a verdict for the Plaintiff, and a motion for a new trial being overruled, the Defendants appealed.\nIn this Court, the case was considered not only upon the motion for a new trial, but also upon a motion in arrest of judgment made here, and was argued by Gaston, for the Appellants, and by Wilson, contra. s\nGaston, for the Defendants,\nI. The breach assigned, is not for making a false return, but for the non payment of money received on an execution. This distinction is not nominal, for if the Defendant in the execution was insolvent, it would affect the amount of damages.\nThe sureties are liable only according to their engage\u00bb. nicnt, not for any tiling whirl) may be tantamount to if. . They are bound only tor the official acts of the Sheriff; ^his \u00abas not an official act, as there was no process in the Sheriff\u2019s hands, auth \u00bfrising him to receive the money as Sheriff.\nHad no money been paid by Ledbetter, but the Sheriff being his debtor, bad engaged to satisfy the execution, this engagement would not bind the sureties. (Codwise v. Field, 9 Johns. Rep. 263. Turner v. Findali, 1 Crunch. 1 \u00a17.)\nA return is only prima facie evidence of the facts contained in it, if Ihc return had stated the facts now proved, it would not prevent the Plaiujfcff from taking out an alias. (Gyjford v. Woodgate, \\ 1 East. 297.\nIf. The verdict cannot be sustained ; 'be bond is made payable to John Branch. Governor, See. not being taken according to the requisites of the art of 1777, it must be regarded as a bond given to an individual. (2 Hawks 4.) Independent of that act, the successor cannot, in case of a sole corporation, take personalty either in possession or in action. The Chamberlain of London is an excep-ceptiou to this rule, founded on the custom of that city ; and the rule is the same, although the grant is to the successors. (Termes d\u00e9la ley \u00a167-68. Com. Dig. Franchise F. 15. Dyer 48 a. Fuhoood\u2019s case 4 Reports 65 a. 1 Rol, M. 515. Co. Litt. 46 b.)\nWilson, for the Plaintiffs,\n1. This question lias already been decided in favor of the Plaintiffs. (State Bank v. Twitty & Ledbetter, 2 Hawks 1.) if there is any error in the charge of the Judge, it is in favor of the Defendants, for it is questionable whether the evidence offered to exculpate them, ought to have been received ; the return, being a matter of record, is not only prima facie evidence, but couctu-sive upon all the partios, unless attacked by the sure-tics, upon the. around of fraud and collusion.between the \u2019 Plaintiffs and the Sheriff; this is not pretended.\n2. it is objected, that the suit being brought upon a bond which is good at common law only, ougiit to be brought in the name of John Branch, and not in (but of Gabriel Holmes, as ids successor \u2014 non coastal here, but that these are the words of the bond.\nIf however, the Court will presume that Branch is the obligee, then this is a proper case for this Court to a-jnend. (Taylor's Revised 68. Justices of Camden v.\nSawyer, 2 Hawks 61. Wilcox v. Hawkins, 3 Ditto 84.)"
  },
  "file_name": "0153-01",
  "first_page_order": 162,
  "last_page_order": 166
}