Opinion
May Term, 1819.
From Wake.
A scire facias issued to shew cause why a forfeiture should not be made absolute. The Defendants showed cause, and the County Court remitted the forfeiture. The Solicitor for the State appealed to the Superior Court. In that Court, the case must be heard de novo; and the Defendants shew cause in the same manner as the County Court.
The defendants were under recognizance to appear at WAKE County Court, at February Term, 1818; they failed to appear, and their recognizances were forfeited. Scire faciases were issued, and upon their appearing in Court and shewing cause, their forfeitures were remitted. From this judgment of the County Court, the Solicitor for the State appealed (231) to the Superior Court, and the presiding Judge enquired of the Attorney General what reason he had to offer, why the judgment of the County Court should not be affirmed. The Attorney General contended, that as this was an appeal, there must be a trial de novo in the Superior Court and that the defendant should be compelled to shew cause why their forfeiture should not be made absolute, in the same manner as if the scire faciases had issued from the Superior Court. The Judge was of opinion, that the Attorney General must shew that the judgment of the County Court was wrong; and that not being shewn, the judgment of the County Court was affirmed, and the Attorney General appealed to this Court.
Upon an appeal from the County to the Superior Court, the law directs that there shall be a trial de novo: that is, it shall be tried in the same manner as it should have been tried in the County Court, On the motion to remit the forfeiture in the County Court, the Defendants were bound to shew some reason or cause wherefore it should be remitted. When the case came into the Superior Court, upon an appeal, the Defendants should again, as in County Court, have shewn the reason wherefore their forfeiture should be remitted. The opinion, therefore, of the presiding Judge, was erroneous in affirming the judgment of the County Court, merely because the State did not shew it to be wrong. He should have heard the case de novo. The judgment of the Superior Court must therefore be reversed, and the case remanded to the Superior Court, with instructions to hear it de novo. (232)