Street v. Clark, 1 N.C. 15, 1 Tay. 15 (1799)

March 1799 · North Carolina Superior Court

1 N.C. 15, 1 Tay. 15

Street versus Clark.

AT the last term, a rule was made on the defendant to shew cause why a certiorari should not issue, to bring up a cause depending in the County Court of Rockingham.

The affidavit upon which the rule was founded, stated, in substance, that Street had been arrested in Rockingham county, at the suit of Clark, in an action of slander; that a combination to ruin and destroy him, prevailed in that county, in which Clark was most active; that he had been greatly harrassed by him and others: whereby such unfavorable sentiments were excited against him in the public mind, that he verily believed he could not have a fair trial in that county.

Certiorari denied, on an affidavit that a combination to harrass the deponent, prevails in the county wherein he is sued, so that he believes he cannot have a fair trial.

By

the Court:

A certiorari ought not to issue where the party has another remedy: in this case another, and a more effectual one, is provided by law, against the injustice which he may receive, or even imagine, by the determination of the County Court.

Should they refuse an appeal, this court might properly interpose its authority; but it would be transgressing the bounds of its own jurisdiction, to deprive the County Court of theirs, and this too, without a sufficient ground: for it is certainly pressuming too much, upon the belief of a party concerned, that a court of justice can so far forget the solemn sanctions under which it acts, and the high responsibility of its duties, as to be influenced in its decisions, by bad men combined to oppress an individual.

Duffy for the Plaintiff.

Williams for the Defendant.

Of this action the County Court has, exclusively, original jurisdiction under the act of Assembly; and this ought first to be exercised, before the power of this Court commences; but in any case, a certiorari is improper before trial, where there is a right of appeal: unless, perhaps, in a case where the County Court assume a jurisdiction which does not belong to them. Rule discharged.