Judges ex rel. Edmondson v. Washington, 12 N.C. 152, 1 Dev. 152 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 152, 1 Dev. 152

The Judges to the use of Wright Edmondson, v. N. Washington & others.

From Wayne.

Where a Judge’s order directs a certiorari to issue to the County Court, it is no violation of duty in the Clerk of the Superior Court to issue the writ without security ; to take such security belongs to the Clerk of the former Court bel ore yielding obedience to the-writ.

By the second section of an act of Assembly, passed .in 1810, entitled “ an act to compel persons to give security in certain cases,” it is enacted, “ that iu all cases where certioraris are directed to the County Courts, the derk of the court is hereby required to take security, in the same manner, &c. that security is taken on appeals from the County to the Superior Court.”

In 1821, one Jernigan, against whom Edmondson had obtained a judgment in Wayne County Court, presented to the Defendant «¡Va. Washington, the Clerk of the Superior Court of that county, the mandate of the Chief-Justice directing him to issue writs of certiorari and su-t y perccdeas to bring up the record of that judgment, and to supercede execution thereon. The mandate was unconditional in its terms, and Washington issued the writs and the Clerk of the County Court certified the record, no security having been taken by either of them. Whereupon, Edmondson conceiving this a breach of duty in the Clerk of the Superior Court, brought this action upon his official bond.

On the trial in the Court below, his Honor Judge ¡DoNNEii, directed a verdict for the Defendants, arid the, Plaintiffs appealed.

The case was here submitted without argument, by Badger and TF. IL Haywood, fr. for the appellant, and Gaston contra. ,

Hall, Judge.

—The Judge instructed the Juey, that the Clerk of the Superior Court, in issuing the writ of supercedeas on receiving the mandate of the Chief-Jus-(ice, was not guilty of misconduct in office, so as to subject himself and his securities to the Plaintiff’s action, and in this charge Í think the Judge was guilty of no error. — The act of 1810, c. 793, directs, that in all cases where certioraris are directed to the County Courts, the Clerk of the Court shall take security, in the same manner, and under the same regulations that security is taken on appeals from the County to the Superior Courts.

It was the duty of the Clerk of the County Court to take security as directed by this act, before he obeyed the certiorari, and a refusal by him who prayed such certiorari to give .security, would he a sufficient excuse and return to the writ. ■ But this act is inapplicable to the present case. It imposes no such duty upon a Sheriff-to whom a supercedeas is directed ; nor is any such duty imposed upon the Clerk of the Superior Court who issued the supercedeas, either by law, or the mandate of the Judge who authorised him to issue it. — I therefore think, the rule for a new trial should be discharged.

Per Cüríam. The rule for a new trial is discharged.