{ "id": 8686985, "name": "THOMAS J. PERSON v. JAMES W. NEWSOM", "name_abbreviation": "Person v. Newsom", "decision_date": "1882-10", "docket_number": "", "first_page": "142", "last_page": "145", "citations": [ { "type": "official", "cite": "87 N.C. 142" } ], "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": [ { "cite": "7 Ired., 169", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8688057 ], "opinion_index": -1, "case_paths": [ "/nc/29/0169-01" ] }, { "cite": "7 Jones, 288", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2088557 ], "opinion_index": -1, "case_paths": [ "/nc/52/0288-01" ] }, { "cite": "8 Ired., 240", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8689336 ], "opinion_index": -1, "case_paths": [ "/nc/30/0240-01" ] }, { "cite": "8 Jones, 475", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 1961137 ], "opinion_index": -1, "case_paths": [ "/nc/53/0475-01" ] }, { "cite": "4 Jones, 470", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 8682987 ], "opinion_index": -1, "case_paths": [ "/nc/49/0470-01" ] }, { "cite": "7 Ired., 109", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8685735 ], "opinion_index": 0, "case_paths": [ "/nc/29/0109-01" ] }, { "cite": "7 Jones, 288", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2088557 ], "opinion_index": 0, "case_paths": [ "/nc/52/0288-01" ] }, { "cite": "8 Ired., 240", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8689336 ], "opinion_index": 0, "case_paths": [ "/nc/30/0240-01" ] }, { "cite": "8 Jones, 475", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 1961137 ], "opinion_index": 0, "case_paths": [ "/nc/53/0475-01" ] }, { "cite": "4 Jones, 470", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 8682987 ], "opinion_index": 0, "case_paths": [ "/nc/49/0470-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7165, "ocr_confidence": 0.495, "pagerank": { "raw": 1.4292197538457575e-07, "percentile": 0.6509304210399911 }, "sha256": "e68c2628951ffd885ecf94b55c6e429b0360ee1e96fb9aa22c4142bf58119d8e", "simhash": "1:90ae0b6b276fe640", "word_count": 1258 }, "last_updated": "2023-07-14T20:38:13.738110+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS J. PERSON v. JAMES W. NEWSOM." ], "opinions": [ { "text": "Smith, C. J.\nThe question presented is as to the liability of the defendant to the amercement for not making \u201c due return\u201d of the process under the statute, (Bat. Rev., ch. 106, \u00a7 15), either because not in time or insufficient in form.\nThe return is in substance that the debt and interest had become the property of the defendant, and he had a right to forbear the enforcement of the mandate. If such be the fact, and it must be so assumed, upon the motion for an amercement, the debt being under the control of the defendant, as owner, its collection may be suspended without the incurring of liability to the plaintiff as an \u201caggrieved party.\u201d It may be an untrue return subjecting the officer to the heavier penalty imposed for making a false return, fur that, the payment extinguished, hut did not transfer the debt; still the return is sufficient in law to excuse the defendant from further proceeding under the process, and protects him from this penalty now sought to be enforced. Waugh v. Brittain, 4 Jones, 470.\nThe next inquiry is whether the return is in due time: The case of Ledbetter v. Arledge, 8 Jones, 475, cited in the argument for the appellant, is directly in point, and decisive. There, the plaintiff was allowed to enter up judgment nisi against the defaulting officer on Thursday of the term, and immediately thereupon the defendant, with leave of the court, made his return, and moved to vacate the judgment. Delivering the opinion of the court, Manly, J., says: \u201c The sheriff is allowed all the days of the term to return a fieri facias, unless he be ruled, upon motion and cause shown, to return it to some intermediate day. When the motion is made, like other acts of the court, it stands by relation as if done on the first day.\u201d\nThe statute now in force expressly directs that \u201call executions on judgments in civil actions,\u201d \u201cshall be returnable to the term of the court next after that from which they bear teste,\u201d not specifying any day thereof. Bat. Rev., ch. 18 \u00a7 7.\nThe same inference would seem to be authorized by the decision that the amercement can be imposed upon application at a subsequent term. Holcombe v. Rowland, 8 Ired., 240.\nThere is error, and the judgment below must be reversed, and judgment entered here for the defendant.\nError. Reversed.\nIn Wyche v. Newsom, from Northampton :\nThere was judgment for the defendant and the plaintiff appealed.\nSmith, C. J. The facts before us upon this appeal are similar to those in Person v. Newsom, supra, differing in that the return here made is simply, \u201c satisfied,\u201d and without explanation.\nBesides the objection pointed at the delay, the plaintiff insists that the return is insufficient in law in not further stating what disposition has been made of the fund.\nIn Davis v. Lancaster, 1 Murp., 255, where the sheriff made a similar return upon an execution in his hands, and the proceeding was to amerce him under the act of 1777, it was declared he had not incurred the penalty. This construction of the act is recognized and enforced in the latter case of Corkerham v. Baker, 7 Jones, 288, and is no longer open to controversy.\nSince the argument our attention has been called to the Revised Code, ch. 31 \u00a7 39, which imposes a forfeiture of one hundred dollars upon a sheriff or other officer receiving process for execution and failing to note on it the date of the delivery to him. This section obviously has no reference to final process, as shown by its connections. And this is the more manifest by reference to the similar section in the Revised Statutes, c'h. 31 \u00a7 43, which with some modifications has been introduced into the Revised Code. It is there declared, that,\n\u201c The clerk or attorney issuing process shall mark thereon the day on which the same shall be issued, and the sheriff or oth^r officer receiving the same to execute, shall in like manner mark on each process the day on which he shall have received it; and every clerk, attorney,sheriff or other officer, neglecting so to do, shall forfeit and pay the sum of one hundred dollars, to be recovered by action of debt, in any court of record having cognizance thereof, by any person who shall sue for the same, with costs.\u201d\nReference .was had to an independent action to enforce this penalty for the failure of the defendant to endorse upon a writ of capias ad respondendum the day of its delivery, in Hathaway v. Freeman, 7 Ired., 109; and if the penalty did attach to such a default in returning an execution, it could not be recovered in the summary proceeding for a neglect to make \u201cdue return,\u201d that is, as defined by Mr. Jacobs in his Law Dictionary, to endorse his certificate \u201c of what he hath done touching the execution of. any writ directed to him.\u201d\nBut the suggestion meets with another obstacle not less formidable \u2014 the point is not presented in the case transmitted on appeal, and cannot be made here for the first time.\nThere is no error, and the judgment must be affirmed.\nNo error. Affirmed.", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "Mr. R. B. Peebles, for plaintiff.", "Messrs. Mullen & Moore and W. Bagley, for defendant." ], "corrections": "", "head_matter": "THOMAS J. PERSON v. JAMES W. NEWSOM.\nExecution \u2014 Amercement of Sheriff.\n1. A sheriff endorsed upon an execution the words, \u201c de.bt and interest due to sheriff, costs paid into office;\u201d and upon another, the word \u201csatisfied,\u201d without stating what disposition he liad made of the fund ; Held that the returns are sufficient in law to relieve the sheriff from amercement for not making \u201cdue return.\u201d\n2. In such case he is allowed all the days of the term to return an execution, unless lie be ruled, upon motion and cause shown, to return it on some intermediate day'. ,\n3. Nor is lie required to note thereon the date of its delivery to him, (The act of assembly has no reference to final process,)\n(Waugh v. Brittain, 4 Jones, 470; Leibetter v. Arledge, 8 Jones, 475; Halcombe v. Rowland, 8 Ired., 240; Cockerham v. Baker, 7 Jones, 288; Hathaway v. Freeman, 7 Ired., 169, cited and approved )\nAmercement of sheriff \u2014 Motion of plaintiff to make judgment nisi absolute, beard at January Special Term, 1882, of NortiiamptoN Superior Court, before Graves, J.\nOn the 17th .of October, 1878, execution issued on a judgment recovered in the said court by the plaintiff against tiie Seaboard and Roanoke railroad company, and was delivered to the defendant, then sheriff, returnable to the next ensuing term, which began on the 4th Monday after the 1st Monday in March.\nThe writ not having been returned, the plaintiff, on the 12th of April, 1879, the last day of the term, moved the court and obtained a judgment nisi against the defendant for his failure; whereupon being present he asked the court to prolong the session until he could make his return, which being granted, he returned the process in his hands at the hour of 5 p. m., with his endorsement in these words: \u201c Debt and interest paid shff, costs paid into office,\u201d No money was collected by the defendant, but he paid the amount due the plaintiff from his own funds.\nUpon these facts the court ruled that the return was nob sufficient, and rendered the judgment, absolute, for the penalty of one hundred dollars, and the defendant appealed.\nMr. R. B. Peebles, for plaintiff.\nMessrs. Mullen & Moore and W. Bagley, for defendant." }, "file_name": "0142-01", "first_page_order": 158, "last_page_order": 161 }