
    
      Stuart v. Fitzgerald-Bail.
    The pleas were nul tiel record, death of the principal, payment and set-off—Surrender of the principal, and a special plea that the defendant was not sheriff at the time the writ was executed.
    The plaintiff sued out a writ against Martin Armstrong from the county court of Surry, at May term, 1807, but it was not returned until November term of the same year, at which time it was returned with the following endorsement: “Executed, James Fitzgerald.” No bail-bond was taken by the sheriff, a judgment was recovered against Martin Armstrong, and this is a scire facias against the defendant, to subject him to the payment of the judgment recovered against Armstrong, he having taken no bail bond. The defendant was elected sheriff of Surry at May term, 1806. At August term of the same year, he was qualified and gave bond and security. At May term, 1807, Thomas C. Burch was elected sheriff, and qualified and gave bond at August term following. It appeared from the evidence of Joseph Williams sen. Clerk of the County Court of Surry, that the practice of electing at May, and qualifying at August, obtained at a time when the law required sheriffs to be commissioned by the Governor, and that the practice has continued to this time. It appeared further by his evidence, that the sheriff elected at May, did not enter upon the duties of his office until he had given bond and qualified at August term following his election. It appeared by an entry on the docket, at November term, 1807, that the suit was then returned by consent of Armstrong and Fitzgerald the present defendant. It appeared also, by evidence, of the deputy-clerk, Joseph Williams, jun. that when Fitzgerald returned the writ at November term, he then observed that he had executed the writ in due time, but had failed to return it at August court preceding owing to its being mislaid. No capias could be found against Armstrong, the original defendant; but it appears from an entry on the execution docket, that a capias did issue from August, returnable to November, 1809, and that the same was returned "not found.” It further appears, from the affidavits of Joseph Williams, sen. clerk of the county court of Surry, Joseph Williams, jun. deputy clerk, and John Wright, deputy sheriff, that a capias did issue, against the defendant Armstrong, from August court, and was returned by the sheriff to November, 1809, "Not found;” but that the same had since been lost of mislaid; after which the present scire facias brought against Fitzgerald. The several papers alluded to in this case, accompany the same, and form a part thereof.
    The Court adjudged that there was such a record, and a verdict upon the issues was found for the plaintiff. The following reasons were offered for a new trial, but were overruled. If the Court should be of opinion for the defendant, a new trial to be granted: if otherwise, judgment for the plaintiff.
    reasons for a new trial.
    1st. That it was adjudged by the Court, that there was a no record. 2d. That parole evidence was received to supply the record; which was contrary to law. 3d. That the verdict of the Jury was contrary to law and evidence. 4th. Misdirection of the Court.
   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.  