Note.—Vide Chambers v. Smith, post 366.
Anonymous, 2 N.C. 349, 1 Hayw. 349 (1796)
May 1796
·
North Carolina Superior Court
2 N.C. 349, 1 Hayw. 349
Anonymous.
if a certiorari bo obtained to remove a cause upon the ground that an appeal mid been refused in tío- court below, the case shall be placed upon the trial docket, without shewing- any other cause.
This suit had been commenced by a warrant issued by a Jíntico of the Peace. There was an appeal from the judgment of the Justice to the County Court, where a trial by jury was bad. There an appeal was moved for, which the County Court denied. lie then obtained a certiorari to remove the proceedings into this court, upon an affidavit stating the above facts. 'Phis certiorari was set down on the argument docket in this court, and now the Plaintiff in the certiorari, stated ihe reasons for obtaining it as above; and it was argued on his behalf, that wherever the County Court refuses an appeal,where by law the party is entitled to it, and moves for it in proper time, and offers to perform the requisites for obtaining an appeal, arid a certiorari is obtained for that cause, the court here will grant a new» trial without inquiring further than whether an appeal was refused — and asrit is admitted in the present case, that the appeal was refused, it is not incumbent upon the Plaintiff in the cer-tiorari, to shew any other cause in order to obtain a new trial here. Ami of this opinion were the court clearly; and the other side admitting that an appeal had been re* *350fused, thóugh the party meu. ug ¡t offer.-d to assign reason-, & give security for prosecuting with effect, ¡hey or-dried iík» cause to he set down for trial, and to I»,* ¡dared amongst those for trial at the nest term. And it was done accordingly.