Note. — Vide Anonymous, ante 302.
Chambers v. Smith, 2 N.C. 420, 1 Hayw. 420 (1796)
Sept. 1796
·
North Carolina Superior Court
2 N.C. 420, 1 Hayw. 420
Chambers v. Smith.
Any omission, neglect or delay of the Clerk, or ¡my contrivance of the adverse party, or the improper conduct ot the County Court, in granting an appeal where properly applied for, is sufficient to entitle the party to a certiorari, and a new trial will be immediately granted in the court above.
Certiorari. Per curiam — It is stated in the affidavit of Chambers, that after the trial of the issue in this action in the County Court, he moved for ao appeal; and after-wards during the sitting of the court, he offered sufficient sureties for prosecuting the appeal with effect, but that the Clerk being not ready with the bond, and telling him it would do as well to give the bond at the nextCounty Court, which happened before the sitting of the Superior Court, he retired; and at the next court lie applied again, and was then told by the Clerk it was too late. If this be a true statement lie-is entitled to a new trial in this court, in the same manner as if the appeal had been regularly brought up. The decisions have been uniform, that after the party prays an appeal, and offers or gives sufficient sureties, and he is defeated of his appeal by the neglect, omission or delay of the Clerk, or by any contrivance of the adverse party, or by any improper conduct of the County Court, as if they adjourn after the tri*421 n\f f0 prevent the pai’ty from applying for the appeal— in all such cases, this court will grant a certiorari, and order a trial here, without enquiring into the motives of the party praying the appeal, or into the merits <>f his cause ; for by the laws of the country, he is entitled to his appeal whenever he thinks proper to crave it, and he ought not to be defeated of his privilege by the conduct of others : and we would now order the new trial his counsel prays for, but for the contrary affidavits which render ii doubtful whether he. did offer the sureties as stated in' the affidavit. Wherefore let this cause lie over till the first day of next term, that the Plain) iff may produce the affidavits of the sureties themselves who were offered, or such other affidavits a. he may think proper.