#### ARNOLD WHITFIELD vs. ROBERT JOHNSTON.

When the proceedings before a magistrate, upon -which he issues an execution, are annexed to the execution, and it is apparent from them there is no judgment authorising 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.

This was on action of trespass vi et artnis, tried at Spring Term, 1841, of Martin Superior Court oí Law, before his honor Judge Settle. 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 to $ 100, subject to the opinion of the court as to the defendant’s liability. I-Iis Hon- or 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 non-suit to be entered against him, and appealed to the Supreme Court.

Copy of the proceedings and process under which the defendant insisted he teas 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 to be tound in your county,) so that you. have him before some justice for said county, at Hamilton on the 4th day of May, 1839, then- and there to answer John J. Lancaster, in an action of debt due by account to the amount of sixty doll ars.

Given under my hand and seal, this 15th day of April, 1839.

JOHN LONG, Íi-J-J

*474On the back of this warrant were the following endorsements:

Executed by

ROBERT JOHNSTON.

Judgment against the defendant for ten dollars and costs. May 4th, 1839. . L. JOHNSTON.

An appeal craved and granted to the County Court next, by giving for security ASA. PRICE.

Atttest, L. JOHNSON, J. P.

Whereas an appeal has been prayed and granted, and a failure on the part of the justice ol 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 deft, for the amount of the within principal and costs.

THOMAS JONES, $T pT§ tC»

This the 28th day of October, 1839.

B. F. Moore for the plaintiff.

J. H. Bryan for the defendant.

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.