Dudley v. Carmolt. , 5 N.C. 339 ( 1810 )

STATE OF NORTH CAROLINA,

To the Sheriff of Onslow County — GREETING:

You are hereby commanded to take the body of Robert Carmolt, if to be found in your county, and him safely keep, so that you have him before the justices of our County Court of Pleas and Quarter Sessions, to be held for your county at the courthouse in Onslow County on the second Monday of October next, then and there to answer to Christopher Dudley of a plea of trespass on the case, etc.; damage £ 500. Herein fail not, and have you then and there this writ. Witness, Robert W. Snead, clerk of our said court at Onslow County, 8 July, (340) 1799, and the 24th year of our independence.

W. N. SNEAD, D.C. C. C.

The defendant appeared and pleaded in chief to the action, and upon the trial there was a verdict for the plaintiff. The defendant by his counsel moved that the judgment be arrested, and assigned the following reasons:

1. That the capias ad respondendum upon which the defendant was arrested and required to answer to the complaint of the said Christopher in this suit was not signed by the clerk of the court from which said writ issued, to wit, the clerk of the Court of Pleas and Quarter Sessions for the county of Onslow, as appears by the record in said suit.

2. That the said writ, as appears from said record, was signed by W. N. Snead, D.C. C., when from the said writ it appears that Robert W. Snead was, at the time the said writ issued, clerk of the said court for the county of Onslow, from which the writ issued.

3. That the said writ, as appears in said record, was tested in the name of Robert W. Snead, clerk of the said court, and signed by W. N. Snead, D. C. C.

JOCELYN, GASTON, For Defendant.

This case was argued by Jocelyn for the defendant several terms ago; the court took time to advise, and at this term gave judgment for the plaintiff. The defect in the writ would have been fatal if advantage had been taken thereof by plea in abatement; but as the defendant has pleaded in chief, it would seem to amount to a waiver of that advantage, and be equivalent to an acknowledgment on his part that he has been brought into court by a proper process. 1 Stra., 155; Salk., 59. However, upon this point, the Court gives no opinion, believing that the case (341) can be decided on a ground liable to less exception or doubt. The stat. 5 George I., ch. 13, was passed (as the preamble states) for the purpose of preventing writs of error and reasons in arrest of judgment after verdict, and expressly declares "that where any verdict hath been or shall be given in any action, suit, bill, plaint or demand, the judgment therefor shall not be stayed or reversed for any defect or fault either in form or substance, in any bill, writ original or judicial, or for any variance in such writs from the declaration or other proceedings." Such error, therefore, was cured by the verdict, or at least could not be taken advantage of after verdict. This statute, the most broad and extensive of any passed on the subject, seems completely to cure the defect contained in this writ. Great doubt, however, was entertained by the Court, and much time was spent in ascertaining whether this statute was in force in this State; but in examining the several acts of Assembly the Court have found an act passed at New Bern, on 3 November, 1768, entitled "An act for dividing the Province into six equal districts." Iredell's Revisal, 239. The body of this act is not recited in this revisal of the laws; but upon looking into the act we find that, among other things, it enacts "that all the statutes of jeofails and amendment, which now are in force in England, are hereby declared to extend to and be in force in this colony, and shall be duly observed by all judges and justices of the several courts of record within the same, according to the true intent and meaning of said statute." In 1777, ch. 2, the Legislature further declared "that all the statutes of England and Great Britain for the amendment of the law, commonly called statutes of jeofails, and which were heretofore enforced in this territory by any act or acts of the General Assembly under the late government, are hereby declared to have continued and to be now in full force in this State, and shall be duly observed by all judges and (342) justices of the several courts of record within the same, according to the true intent and meaning of the said statutes, unless where the same are or may be altered by this or any other act." Hence, it evidently appears that the stat. 5 George I. is in full force and ought to be observed by judges and justices of our courts.

But it is contended for the defendant that section 26 of the Constitution supersedes the statute of 5 George I. as to the point now under consideration. That section declares that "all writs shall run in the name of the State of North Carolina, and bear teste and be signed by the clerks of the respective courts." The Court think that the Constitution merely intended to prescribe one uniform mode of issuing writs, and can have no greater effect or binding force than a constitutional act of the Legislature. Suppose, then, that an act of Assembly had prescribed that all writs should be signed and bear teste by the clerks of the respective courts: would not the statute above recited cure such defect after verdict? It surely would. In such a case we would be led to inquire how ought this defect to be taken advantage of? Certainly, in the same way in which, in England, advantage would be taken of a writ that varied from the prescribed form, and that is by plea before verdict; for as there the statute of 5 George I. would cure error in the writ after verdict, so here, the same statute being in force, will cure the like error. Let the reasons in arrest be overruled, and judgment be entered for the plaintiff.

Cited: Sheppard v. Lane, 13 N.C. 156; Glisson v. Herring, ib., 161;Worthington v. Arnold, ib., 364; West v. Ratledge, 15 N.C. 38.