Opinion
(June Term, 1831.)
1. A writ signed by an attorney, under a verbal authority of the clerk, is a nullity; and its subsequent recognition by the clerk or sheriff will not render it valid.
2. The case of Shepherd v. Lane, 13 N.C. 148, approved.
THIS was a special action on the case tried before his Honor, Swain, J., at RANDOLPH, on the last circuit. The plaintiff declared against the defendant, as sheriff, in two counts; first, in neglecting to execute a writ of capias ad respondendum, sued out by the plaintiff in 1824 against one Shubal Gardner; and, second, for making a false return to the writ. Upon the trial, on the plea of not guilty, the plaintiff proved the issuing of the writ; that it came to the hands of the defendant, who failed to execute it, and made a false return thereon.
The Court refused to hear Winston for plaintiff.
Gaston and Nash were to have argued for defendant.
The defendant proved that the paper, which purported to be a writ in that cause, was not signed by the clerk of the county court, but by an attorney. But it appeared that all the attorneys practicing at that court had been verbally authorized by the clerk to fill up and sign writs of subpoena and capias ad respondendum, which had always been recognized by the clerk as valid, and that the writ in question was, upon its return by the sheriff, put upon the files of the court by the clerk, who ratified and confirmed the act of the attorney.
The plaintiff also proved that the defendant had received the (54) same authority from the clerk and was in the habit of signing the clerk's name to writs, and that he, the defendant, was well acquainted with the handwriting of the attorney who signed the writ against Gardner.
Upon this testimony the plaintiff's counsel prayed the court to instruct the jury that if they believed the defendant knew the writ to be in the handwriting of the attorney, and that the attorney had authority from the clerk to sign his name, and had, as sheriff, recognized the paper as a valid writ, he was liable to the plaintiff for neglecting to execute it. The court refused the instructions prayed for, and upon the authority of Shepherd v. Lane, 13 N.C. 148, directed the jury that a writ signed by an attorney, who was neither clerk nor deputy, was a nullity, and the sheriff was not liable for neglecting to act under it nor for making a false return.
A verdict was returned for the defendant, and the plaintiff appealed.
The case of Shepherd v. Lane, supra, is decisive of the present. The new matter shown here, that the defendant knew the writ was not signed by the clerk himself, but by the attorney in the clerk's name, does not distinguish it. For the Court say that the recognition by the sheriff could not give a character to the instrument which it did not in itself possess. And whether this recognition was given under a mistake of the fact, or in disregard of the law, the plaintiff can take no advantage of it.
The direct authority of Shepherd v. Lane is imperative upon the Court. It would be so with me did I, as an individual, retain ever so strongly the opinion given by me upon the trial of that cause on the circuit. A point of this sort must be considered as settled by a (55) decision of this Court upon full argument.
PER CURIAM. Judgment affirmed.