State Ex Rel. Dickens v. Justices of Person County

18 N.C. 406

• Court: Supreme Court of North Carolina
• Decided: December 5, 1835
• Status: Published

Opinion

Daniel, Judge,

after stating the case, proceeded: — This case was within the reasons of the decision in Williams v. Somers, ante, 61. Dickens was present, and made no objections to the Court, at the time Mason was sworn in, but surrendered the books and papers to him. He neither claimed the office, nor tendered bonds, as by law he was bound to do, at that term. The abandonment of the office was conclusively to be inferred from these facts. The observations to the deputy were not communicated to the Court, and could not be acted on by the Court; and consequently cannot affect the decision of this Court. The judgment must be affirmed.

In England, the king is considered the prosecutor in writs of mandamus; and at common law, neither received or paid costs. Though upon discharging a rule nisi, the costs of the motion was in the discretion of the Court. 1 Chit. Prac. 809. In this case, the costs must be paid by the relator Dickens, it being in the nature of a rule nisi.

Per Curiam. Judgment affirmed.