Rosseau v. Thornberry

Full title: ROSSEAU v. THORNBERRY. — 2 L. R., 442

Court: Supreme Court of North Carolina

Date published: Jan 1, 1816

4 N.C. 326 (N.C. 1816)

Opinion

(January Term, 1816.)

If the clerk of the county court neglect to take a bond from the party previously to issuing a certiorari as directed by the act of 1810 (1 Rev. Stat., ch. 4, sec. 16), the Superior Court has power to take bond with good security for the prosecution of the suit.

THIS case came up from the county court of WILKES, by certiorari, to the last March term. No bond had been given to the clerk of the county court at the time of obtaining the certiorari. At the March term, when the writ and record were returned into this Court, a motion was made in behalf of the plaintiff to dismiss the certiorari for the want of a bond to prosecute it having been given by the defendant, at whose application it was obtained. Whereupon, the defendant (327) immediately executed and filed in court a bond with sufficient security for prosecuting his writ of certiorari, and set forth on affidavit that that was the first period at which he knew that it was his duty to file a bond. The motion to dismiss was held up for consideration until this term.

The question for the Supreme Court is, whether the bond could be received by the Superior Court.

CAMERON, J.

The object of the act of Assembly which requires a bond to be given (according to the directions of the act) by the party obtaining a writ of certiorari is to indemnify the adverse party against the consequences incidental to the removal of the suit.

The clerk of the county court to which the writ goes is directed to take from the applicant such a bond as the act requires. If he fails in the performance of this duty, the ends of justice can no otherwise be attained than by such bond being taken in this Court, before a trial is had between the parties.

In this case the applicant for the writ is in no fault. The omission of the clerk of the county court should not drive him from the Superior Court unheard. He has done all that is in his power (and he has done enough) to secure his adversary in the event of his being ultimately successful in the contest.

Let the bond be received, and the suit retained for trial.

NOTE. — See Fox v. Steele, ante, 48, and the cases referred to in the note.

Cited: Brittain v. Howell, 19 N.C. 108; McDowell v. Bradley, 30 N.C. 93.

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