Stuart v. Fitzgerald , 1 N.C. 234 ( 1811 )

Hall, J.

delivered the opinion of the Court:

It has been objected for the defendant, that at the time the writ in question was executed by him, he was not the sheriff of Surry county. It is not neccessary to examine critically whether he was regularly, in all respects, chosen sheriff for that year, or not; because it appears that he 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 executed. After all this, he shall not be permitted to contradict his own acts. He objects again, by his counsel, that the ca. sa. which issued against his principal is not produced. It seems, from the clerk’s execution docket, that such a writ issued and was returned “not to be found.” It appears further, from the oaths of the clerk and his deputy, and the sheriff, that such writ was in the office, but had either been taken out or mislaid. For these reasons, we think judgment should be entered for the plaintiff.