{
  "id": 8692509,
  "name": "James Stuart v. James Fitzgerald",
  "name_abbreviation": "Stuart v. Fitzgerald",
  "decision_date": "1813-06",
  "docket_number": "",
  "first_page": "255",
  "last_page": "257",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Mur. 255"
    },
    {
      "type": "official",
      "cite": "6 N.C. 255"
    }
  ],
  "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": {
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  "last_updated": "2023-07-14T16:33:35.600243+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "James Stuart v. James Fitzgerald."
    ],
    "opinions": [
      {
        "text": "Haii, Judge,\ndelivered the opinion of the Court \u00a3\nIt has been objected for tiie Defendant, tiiat at the time the writ was executed by him, lie was not Sheriff of Surly County. It is not necessary to examine critically, whether lie was regularly in all respects, chosen Sheriff for that year 5 because it appears, that lie qualified by taking the oath of office, and acted as Sheriff of the County during that time, and in that character returned the writ in question. He shall not now be permitted to contradict his own, acts.\nHe objects that the ca. sa. which issued against his principal, is not produced. It appears from the Clerk\u2019s execution docket, that such writ issued and was returned, \u201cnot found.\u201d And from the Oaths of the Clerk and Sheriff, tiiat such a writ was in the office, but had been taken out or mislaid* Let the rule for a new trial be discharged.",
        "type": "majority",
        "author": "Haii, Judge,"
      }
    ],
    "attorneys": [],
    "corrections": "",
    "head_matter": "JUNE TERM, 1813.\nJames Stuart v. James Fitzgerald.\nFrom Surry.\n'Vo\u2019 a sc\u00edr\u00e9 facias against A. as Sheriff, to subject him as special bail, of B. he pleaded among other pleas, that he -was not Sheriff -when the -writ -toas executed. He had returned the writ \u201c executed\u201d to August term 1807 of the County Court, and he was elected at May-term 1806, but did not qualify and give bond until August term thereafter, and in the election of Sheriff in that County, that had been the uniform practice. Held, that having qualified and given bond within a year preceding the return of the writ, and having acted as Sheriff in executing the writ, he shall be deemed Sherifl^ and shall not be permitted to contradict his own acts.\nParol evidence admitted to prove that a ca. sa. issued, and that the Sheriff returned on it, \u201cnot found,\u201d and that it was lost or mislaid.\nThis was a scire facias against the defendant, as Sheriff of Surry county, and special bail of Martin Armstrong. The pleas were \u201c JV\u2019ul tiel record, surrender of the principal,\u201d and a special plea, \u201c that the defendant Was not Sheriff at the time the writ was executed.\u201d\nThe Plaintiff sued out a writ against Martin Armstrong, from the county court of Surry, returnable to August term, 1807, bat it was not returned until November term following, when it was returned into the office with the following indorsemont, via. \u201c Executed, James Fitzgerald.\u201d No bail bond was taken by the giie,.\u00a1ff. a judgment was recovered by Stuart against Armstrong, and thereupon Stuart sued out this scire fa-cias, to subject the Defendant to the payment of the judgment.\nThe Defendant was elected Sheriff of Surry at May term, 1806, and qualified,\u2018and gave bond with security, at August term following.- At May term, 1807, (at which time the writ against Armstrong was issued, and placed in the Defendant\u2019s hands,) Thomas C. Burch was elected Sheriff and qualified, and gave bond at August term following. It appeared from the evidence of Joseph Williams, sen. Clerk of Surry County Court, that the practice of electing the Sheriff ;n May, and of liis qualifying in August, prevailed as far back as the time when the law required the Sheriff to be commissioned by the Governor, and that the practice has continued in Surry ever since. It appeared further, by his evidence, that the Sheriff elected in May, did not enter upon the duties of his office until he qualified, and gave bond at August following. It appeared by an entry oil the docket of November term, 1807, that the writ was then returned by consent of Armstrong and of the Defendant. And the deputy clerk, Joseph Williams, juu swore that when t.he defendant returned the writ, he observed, that he had executed it in due time, but had \u2022failed to return it at August term, because it was mislaid.\nNo ca. sa. against Armstrong could be found in the-office ; but it appeared from an entry on the execution docket, that a capias did issue from August, returnable to November term, 1809, and that the Sheriff\u2019s return thereon was \u201c not found.\u201d It appeared also, from the evidence of the Clerk and Sheriff, that such a ca. sa. had been issued and returned.\nThe Court adjudged that there was such a record as that mentioned in the set./a. the Jury found the issues of fact for the plaintiff, and the Court gave judgment. A rule fora new trial was obtained upon the grounds, 1st, That the Court was in error in adjudging that there was such a record. 2d. That parol evidence was received to supply the' record. 3d. Tiiat the Jury ought to have found that he was not Sheriff when the writ was execut--ed. The case being sent to this Court,"
  },
  "file_name": "0255-01",
  "first_page_order": 259,
  "last_page_order": 261
}