Opinion
(June Term, 1830.)
After verdict it is too late to object that the writ was not signed by the clerk.
DEBT upon bond, originally commenced in the County Court, where the plaintiff prevailed, and the defendant appealed.
No counsel for either party.
FROM RANDOLPH.
After a verdict for the plaintiff in the Superior Court, the defendant moved in arrest of judgment, because the original writ was signed by the plaintiff's attorney in the name of the clerk of the County Court.
NORWOOD, J., overruled the motion, and entered judgment according to the verdict, and the defendant appealed.
This suit was commenced in the County Court, and after a judgment rendered therein against the defendant, he appealed to the Superior Court, and after a verdict against him in that court, the judgment is attempted to be arrested, because the original writ was not signed by the clerk of the County Court.
Had this defect been pointed out by the plea in abatement, it must have been held fatal, and the suit must have shared the fate of Shepherd v. Lane, ante, 148. But the defendant has not thought proper to avail himself of this defect in the writ at an early stage of the proceedings; and now it is too late; and justice as well as law requires (364) that it should be so considered. The defendant has pleaded to the merits of the suit in the County Court, and after incurring the costs of a trial there, has done the same thing in the Superior Court, and then for the first time objects to the validity of the writ. Caswell v. Martin, Str., 1072; Anonymous, 2 N.C. 405. Dudley v. Carmolt, 5 N.C. 339 is an authority in point. In that case the Court would not arrest the judgment after verdict, because the writ was tested by the clerk, and signed by the deputy clerk. It was held that the Statute 5 Geo. I., ch. 13, was in force, which cures such defects in writs after verdict. (Bac. Ab. Amendment and Jeofails, 152.)
PER CURIAM. Error.