We are of opinion, that notice to the attorney at law who recovered the judgment complained of, is sufficient *33notice to authorise the Superior Court of Law to grant the writ of error.
Writ of error allowed.
Leake v. Murchie, 1 N.C. 32, 1 Cam. & Nor. 32 (1800)
June 1800
·
North Carolina Court of Conference
1 N.C. 32, 1 Cam. & Nor. 32
John Leake, Executor of Thomas Rose, deceased, against John Murchie, surviving partner of James Galloway, and Co.
THIS was a motion made in Salisbury Superior Court of Law, March Term, 1800, for the allowance of a writ of error upon a judgment obtained by Murchie, the surviving partner of James Galloway and Co. vs. Leake, Executor of Rose, in the County Court of Rockingham.
The plaintiff in error produced the affidavit of one Matlock, stating that he had delivered a written notice to the attorney who obtained the judgment in the County Court, that the executor intended moving for a writ of error at this Term; the affidavit also stated, that Murchie, the surviving partner, was an inhabitant of the State of Virginia; and the question reserved for the opinion of the judges at their meeting at this term, was, whether notice to the attorney who obtained the judgment complained of, was sufficient notice to authorise the court to grant the writ of error.
The Act of Assembly authorising the Superior Courts to grant writs of error, to correct the errors of any inferior Court, to prevent obtaining writs of error by surprise, requires “that the “party praying such a writ in a civil cause, shall “give notice in writing to the adverse party, at “least ten days before motion of his intention to “move for such writ; and no such writ shall be “granted without affidavit of such notice. Vide “Iredell’s Rev. p. 307, 47 Sec. Ch. 2. act 1777.