{
  "id": 11276293,
  "name": "HENRY ELLIOTT vs. JOHN P. JORDAN et al.",
  "name_abbreviation": "Elliott v. Jordan",
  "decision_date": "1853-06",
  "docket_number": "",
  "first_page": "298",
  "last_page": "300",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Busb. 298"
    },
    {
      "type": "official",
      "cite": "44 N.C. 298"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 310,
    "char_count": 5057,
    "ocr_confidence": 0.544,
    "sha256": "5a542aec49c6ae6ecaadf6379902d998676f07ebd6903cc9b5f23caa4c99d421",
    "simhash": "1:982b5ec5dc102deb",
    "word_count": 896
  },
  "last_updated": "2023-07-14T19:23:02.564304+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "HENRY ELLIOTT vs. JOHN P. JORDAN et al."
    ],
    "opinions": [
      {
        "text": "Nash, C. J.\nIn the order made at Spring Term, 1853, of Perquimons Superior Court, directing this case to be placed on the trial docket, there is error. In the petition, it is stated that the petitioner took out the warrant and placed it in the hands of the constable. He admits he was notified by the officer of the first appointment for the trial of the cause, when he failed to attend in consequence of being \u201c too unwell.\u201d Upon the back of the warrant are three several continuances. Of the first, when the warrant was returned, he had notice ; of the others he had none,- and was not present at the time the judgment was obtained. The first day appointed for the trial was the 22nd February, 1851, and after several continuances, judgment was rendered the 28th of March succeeding. Of all these continuances the petitioner says he was ignorant. By the law, whenever an individual has claims upon others to collect, if within the jurisdiction of a magistrate, he may constitute the constable, into whose hands he puts them, his agent to collect. It. then becomes the duty of the constable to discharge all the duties of an agent, and he and his sureties are bound for any negligence or unfaithfulness, in the management of the business,' and by his acts the plaintiff is bound. If however, the plaintiff does not choose to appoint the officer his agent, he must attend to the business himself, \u00f3r have some one to represent him.\nIn the management of this business, there has been gross negligence in the constable, if \u25a0 he was the agent, in not informing his principal of the obtaining of the judgment in time for an appeal ; or, if he was not the agent, then in the plaintiff in not informing himself of the time of trial of the warrant. In either case, the plaintiff has lost his right to the aid of a writ of recordari. Vigilantibus non dorimentibus servit lex. The case of Baker v. Halstead, ante 41, is decisive of this. The judgment below is reversed and the petition dismissed.\nPeR Curiam. Judgment reversed.",
        "type": "majority",
        "author": "Nash, C. J."
      }
    ],
    "attorneys": [
      "Heath, for the defendant, argued :",
      "W. N. H. Smith, contra."
    ],
    "corrections": "",
    "head_matter": "HENRY ELLIOTT vs. JOHN P. JORDAN et al.\nWhere A. placed in the hands of a constable a warrant against two defendants, and the same was served, and after several continuances, a trial was had and judgment given against one, and for the other defendant: \u2014 Held, that A. was not entitled to a recordar i, although he was detained by sickness from attending the first day appointed for the trial, and had no notice of the otheF proceedings, until too late for an appeal; for if the constable was not his agent, he ought to have attended, or sent an agent, and if his agent, then the neglect of the constable, was in law, his own.\n(The case of Baker v. Halstead, ante, 41, cited and approved.)\nThis was a petition for a writ of recordari, in which the plaintiff alleged that the defendants, Avery and Jordan, owed him a debt of $55., due by their joint bond ; that on 13th February, 1851, he procured a warrant to be issued against the defendants, and placed the same in the hands of one Hasket, a constable, with directions to execute the same and have a trial thereof. That on the back of said warrant the said Hasket indorsed, \u201c Executed \u2014 N. M. Hasket, constable and the following endorsements also appeared thereon, viz.: \u201cFebruaiy 22, 1851, continued, T. Wilson, J. P.\u201d \u2014 \u201cMarch 15, 1851, continued until Friday, the 21st instant, W. G. Welch, J. P.\u201d \u2014 \u201c March 22, 1851, continued \u2019till Friday, 29th instant, \u2014 Edwin Brace, J. P. And, as appears by another endorsement, the Justice of the Peace, on the 28th March, 1851, gave judgment against the defendant Avery, for the amount of the debt claimed, and in favor of the defendant, Jordan, for his costs.\nThe plaintiff further alleged that he had no knowledge of but the first of the said different continuances \u2014 that he never applied for the same, nor had notice thereof, and that until it was too late to obtain an appeal to Court, or a new trial before the magistrate, he supposed that a judgment had been rendered in his favor against both the defendants.\nOn return of the writ of recordari, the affidavits of the parties as well \"as of others, were filed, (but deemed unnecessary to state them, <fcc.); and upon the hearihg of the case before Saunders, Judge, at Perquimons, on the last Spring Circuit, he ordered the same to be placed upon the docket for trial; from which order the defendant, Jordan, prayed and obtained an appeal to the Supreme Court.\nHeath, for the defendant, argued :\n1. That the same rules of law apply to recordaris, as to certioraris; the only difference being that the former are directed to courts not of record; the latter, to courts of record.\n2. In this case the constable was, or was not the plaintiff\u2019s \u2022 agent. If he was such agent, then the agent has neglected the plaintiff\u2019s case ; if not his agent, then the plaintiff has \u2018neglected his case himself. In either event, the case of Baker v. Halstead, ante 41, is decisive against the plaintiff\u2019s petition, and he is re-mediless, because of neglect of his agent or himself.\nW. N. H. Smith, contra."
  },
  "file_name": "0298-01",
  "first_page_order": 310,
  "last_page_order": 312
}