Elliott v. Holliday, 14 N.C. 377, 3 Dev. 377 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 377, 3 Dev. 377

Zachariah Elliott v. William Holliday.

Ignorance of the act of 1777, (Rev. c. 115, s. 75,) requiring appeal bonds to be executed in the court where they were allowed, will not entitle the appellant to a certiorari.

A cause between the parties had been tried in the County Court of Greene, where judgment was rendered for the plaintiff, and the defendant prayed an appeal, which was granted, and his sureties allowed. At the ensuing term of the Superior Court, before Martin, Judge, the plaintiff moved that the appeal be dismissed, because the appeal bond was not executed until after the term of the County Court at which it had been allowed. This fact being established, his Honor sustained the motion. The defendant then filed an affidavit, in which he swore that he was ignorant of the rule requiring the appeal bond to he executed during the term of the County Court; that he thought it sufficient if the appeal was allowed by the court, and that the bond might be executed at any time; that he had brought his sureties to the clerk during the term, hut finding him busy, he had, in consequence of his erroneous impression, requested them to attend after its expiration. The affidavit concluded with an averment of merits. His Honor upon these facts, awarded a certiorari, from which order the plaintiff appealed.

W. C. Stanly, for the plaintiff.

Mordecai, for the defendant.

Daniel, Judge,

after stating the substance of the affidavit, proceeded: Theactof 1777 (Rev. c. 115s. 75,) requires the appellant to enter into bond, with two sufficient sureties before obtaining his appeal. The court is not only to judge of the sufficiency of the sureties, but to take the bond. The defendant does not come within any of the cases decided in this state. (Chambers v. Smith, 1 Hay, 366, Collins v. Nall, ante 3 vol.p. 224.) There does not appear to be any misconduct either in the court, or the clerk, no management, fraud, or contrivance by the adverse party, nor any inability in the applicant to give-daring the term. The only reasons offered, are, that the defendant was ignorant of the law, and that the, plerk was very busy, and he did not wish to disturb him. It is a rule, that ignorance of the law excuses no man. If we were to sustain the certiorari, it would be opening the door for great negligence and fraud in parties applying for appeals, and perhaps perjuries in making affidavits. We think the order awarding the certiorari should be reversed.

Per Curiam. — Judgment’ reversed.