Mecklenburg County NcArchives Court.....Kirk, Hunter V. 1826
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 21, 2009, 6:17 pm

Source: Nc Reports
Written: 1826

Hunter v. Kirk

From Mecklenburg

June Term 1826

The return of a Sheriff of the service of a writ is made upon oath, and cannot 
be contradicted by the Defendant's affidavit that the writ was not served. 
When, however, a Defendant against whom a judgment by default had been 
rendered, obtained a Certiorari, and swore that the writ had never been 
served, and that he had a good defence, the Certiorari will not be dismissed, 
but a new trial shall be had.

Kirk sued out a writ against Hunter, the plaintiff, returnable to August Term, 
1824, of Mecklenburg County Court. The sheriff returned this writ "executed," 
and a judgment by default was taken. At the next term thereafter a writ of 
enquiry was executed, and the jury assessed plaintiff's damages to $81 and 
costs. An execution was issued thereon, and was returned satisfied.

On the 30th of March, 1826, Hunter, sued out a writ of Certiorari to 
Mecklenburg Superior Court, and when the cause came on to be heard before 
Daniel, Judge, the affidavit of Hunter was read, stating that the writ never 
was served on him, and further, that he believed he had a good defence, but 
could not avail himself of it before, because he was ignorant that there was 
any suit pending against him. The affidavit of the sheriff was also read, 
stating, that to the best of his knowledge the writ was served, and that he 
never had returned any writ as executed by himself which he had not actually 
served.

Judge Daniel dismissed the Certiorari, and ordered a Procedendo to the Court 
below - whereupon, Hunter appealed.

Hall, Judge, delivered the Court's opinion.
Although the sheriff does not swear positively to the execution of the 
process, yet he states that he verily believes he did execute it. Indeed he is 
a sworn officer, and his return cannot be contradicted by the defendant's 
affidavit.

But the defendant states, that he believes he has a good defence to make, on 
behalf of his intestate, that he did not make it, because he was ignorant that 
any suit was depending against him. I think the ends of justice would be 
better answered by granting a new trial, than by dismissing the Certiorari.

We are therefore of opinion, that a new trial should be granted.

Judgment reversed.



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