Pannell v. M'Crawley, 3 N.C. 177, 2 Hayw. 177 (1802)

April 1802 · North Carolina Superior Court

3 N.C. 177, 2 Hayw. 177

Pannell vs. M'Crawley and M'Crawley.

Tj'JECTMENT. Prior to the last term, the counsel for the plaintiff suggested the death of one of the defendants ; but the clerk failed to enter it. At the last term a trial was had, and a verdict for the plaintiff. In the vacation after ibis term, an añidas it was made, that one of the defendant's had died before the trial, and that no suggestion of his death had been entered of record.--A supersedeas was obtained, and notice given, that a writ of error would be moved for that cause. At this term the plaintiff's counst! produced an. affidavit of Mr. Taylor, who acted as deputy-clerk at the titiie the suggestion was made , stating that it it had been made, and that he %vas directed to enter it, but delayed the entry in order to consult his principal about the form ; and it was afterwards forgotten-.

And upon this affidavit, the plaintiff 's counsel moved for, and obtained, a rale, to shew cause why the suggestion should nos be entered mine l re tunc } which coming on to be argued, the pUmsiiPs counsel cited S Burr. 2731. Cowper, 408, and 5 Term,

Mr. NerVJosd, for the defendant,

insisted that if the amendment moved for, should be granted, still the court should order ihe plaintiff to pay the co3ts of the ¡upersedeas, and other proceeding:; preparatory to the writ of error.

Taylor, Judge,-

The amendment moved for, is within the principle oi the eases cited ; and therefore must be allowed. I am of opinion, however, that as the plaintiff was put to costs by this omission, the defendant should pay the costs occasioned by i\

The defendants counsel then moved that the cause should be referred to the Court of Conference.

1 ay lor, J edge — It shall be carried to '■.he Court of Conference if the counsel desire it.

Upon which the plaintiff’s counsel produced an affidavit, stating that the defendant was in declining circumstances, and praying that he be held to give security for the costs. The Judge thought this reasonable, and directed such security to be given. The defendant declined giving the same, and the cause was not removed.