Judges Ex Rel. Edmondson v. Washington

12 N.C. 152

• Court: Supreme Court of North Carolina
• Decided: July 5, 1827
• Status: Published

Opinion

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.