Jordan v. Porterfield

By the Court. Starnes, J. delivering the opinion. Requiring this record to speak strictly for itself, it shows, nothing more than a defect in the teste of this ca. sa. If the Sheriff was to know that Garnett Andrews was not Judge of the Superior Court in December, 1852, (the date of the process,) he should be required also to. have known that this was a mere defect in the teste of the ca. sa.; that this teste was mere matter of form — not a substantial portion of the execution, and that the defect was therefore merely an irregularity, and did not vitiate that process. In such cases of mere irregularity of process, an officer refuses to act, upon his peril. We think the natural presumption in this case was, that there was a clerical mistake as to the date, and if the Sheriff [141] found that this defect was an obstacle in the way of executing the process, it was his duty to have brought it to the attention of the Clerk, in which event, the mistake might have been remedied. The idea of permitting him to shelter himself under such a plea, on account of failure to take a proper bond, •cannot be tolerated for a moment. Judgment reversed.