#### JOSEPH WILLIAMS v. WINSTON SOMERS.

Where a person had been elected clerk of the Superior Court, under the act of 1832, c. 2, and at the proper time, had tendered his bonds which had been accepted by the Court, and he inducted into office, while the former, clerk was present in Court, cognizant of what was going on, and did not object thereto, but actually surrendered up the office and records to the new clerk in term time, and retired from the performance of the duties of the office for twelve months thereafter; It was held, that such conduct in the old clerk, amounted to a surrender of his office to the Court, and justified the reception and induction into office of the newly elected clerk.

At Surry, on the last Circuit, before his honour Judge Martin, the plaintiff filed an information, in the name of the Attorney General, in the nature of a quo warranto, founded upon the following affidavit:

“ State of North Carolina, Surry county.

Superior Court of Law. September Term, 1834.

“ The affidavit of Joseph Williams, who states that he was duly appointed clerk of the Superior Court of law for the county of Surry aforesaid, at the March Term of the said Court in the year 1807; that he properly qualified and gave bond and security for the discharge of his official duties as required by law, and that he has regularly given bond and security agreeably to the provisions of the various acts of assembly, from that time up to March Term, 1834; that in 1832 the legislature of North Carolina passed a law changing the mode of electing the clerks of the several Superior and County Courts within this state, and vesting the same in the free white men entitled to vote for members of the House of Commons of the General Assembly; that under that law an election was held in the county of Surry, on the second Thursday in August 1833, and he supposes the sheriff returned that one Winston *62Somers was duly elected; that at the September term of the said Superior thereafter, while the official bonds of this affiant were in full force and effect, the said Winston Somers appeared in Court, and usurped and took upon himself the discharge of the duties of the clerk of the Superior Court aforesaid, thereby ejecting this affiant from the said office, to his great oppression and damage, and in utter disregard of the established laws of the land. This affiant further states, that at the time the said Somers took possession of the books papers and records of the said office he (this affiant) stated to him (the said Somers) that he did not resign his office as clerk of the said Superior Court, and that if the act of 1832, chap. 2, was decided to be unconstitutional, he should contend for his office together with all the fees that had accrued in the mean time.

Jo. Williams”

Sworn to before the Hon’ble

James Martin, Judge.

To this information Winston Somers filed the following pleas: “ Defendant by way of plea to the application of Joseph Williams to be reinstated in the office of clerk of the Superior Court of said county saith, that he did not usurp and take upon himself the discharge of the duties of said office contrary to law, nor in any wise eject the said Joseph from the same; that under the act of 1832, prescribing the method of electing the clerks of the Superior and County Courts in this state, the said Joseph Williams and defendant, became candidates for the office aforesaid, and so continued up to the election in August, 1833, when defendant obtained a majority of the votes duly given at the said election, and was declared elected by the proper authority; and during the canvass the said Joseph declared, he would abide and be content with the decision of the people, and so expressed himself after the contest. That at September term of this Court next after the election aforesaid, defendant appeared in Court, tendered the bonds required by law to the presiding Judge, by whom they were accepted, and before whom they were proved, whereupon he took the necessary oaths of office, all which *63will appear by reference to the records of said Court, and to all which proceeding the said Joseph made no opposition though then present in Court; and further, that on Monday ,of September term aforesaid, after defendant had tendered his bonds, the said Joseph called on defendant, took him into the clerk’s office in the Court-house, surrendered to him the books and papers appertaining to said office, and took a receipt from defendant for the same, in the following words and figures: ‘ Surry County, September the 2nd, 1833,1 Winston Somers have received all the papers that are in the Superior Court office at this time from Joseph Williams late clerk — W. Somers,’ the body of which receipt is in the proper hand-writing of the said Joseph; that defendant hath continued without molestation to hold said office, and with fidelity discharged the duties of the same from the time aforesaid up to this time; that he hath paid fees to the said Joseph, and the said Joseph hath recognised defendant as clerk of said Court, by signing a receipt to him in that character, and therefore, defendant pleads that the said Joseph hath surrendered, resigned and vacated said office, and he prays, &c. For further plea defendant states, that the clerks of the several Courts in this state, are bound annually to execute and tender the several bonds by law required to the presiding Judge, and that the said Joseph hath not complied with the law in such case provided, whereby and by virtue of an act in such cases madé, he hath forfeited said office, and defendant prays, &c.”

To this “plea, the plaintiff demurred, which his honour proforma, sustained, overruled the plea and adjudged that the defendant be removed from office and the plaintiff be reinstated, whereupon the defendant appealed.

Devereux, for the defendant.

Badger, contra.

Rui-iiN, Chief Justice.

— The attention of the Court was not called by the counsel to the form in which this proceeding is brought forward; and thence it is supposed, that the object of the parties is to obtain a decision upon the merits of the controversy. The Court will therefore *64proceed to consider the merits: premising only, that it must not be inferred therefrom, that the particular remedy adopted in this case, is either approved or disapproved here.

By the general demurrer, the matters of fact set forth in the plea, are admitted to be true. In the opinion of the Court, those facts do amount fully to a vacating of the office of clerk by Mr. Williams. Reliance is not much placed on the transactions between that gentleman and Mr. Somers in private; for the old clerk could not by his own act merely, confer a right on another, to an office concerning the administration of the law. But as the office is of that character, and as the discharge of the duties by the officer himself, or through a deputy in term time, was indispensable to the despatch of business, the withdrawal of Mr. Williams from the discharge of those duties, and the withholding from the knowledge of the Court all claim to the office itself, fully warranted the Court to admit another person. The mere absence from Court at a particular time would not authorise a judgment of amotion; nor could another person be appointed and inducted fully into office, upon the score of his predecessor’s misdemeanor in office without such a judgment. But as this gentleman was personally present, and cognizant of what was going on, and that a new clerk was about being admitted, and his admission stated of record as an induction generally into the office, his silence is a tacit approbation of the act of the Court; and if that act be otherwise unwarranted, it is confirmed and rendered valid as against him, by and upon his own consent. The abandonment of the office is, at all events, conclusively to be inferred from those facts, in con-nexion with the subsequent failure to give or tender official bonds. That failure might not prejudice a person removed by a decision of the Court against his will, and upon objection made; although by statute, the failure to renew his bonds is a forfeiture of office. That must mean a person who is de facto clerk; because from such only is a security useful, and one cannot be required to tender bonds as clerk to a Court, which denies that he is clerk, and therefore would not, and could not take his bond. But *65that circumstance is of force here, as it gives a character to the conduct of the party himself, in the first instance. If he had urged to the' Court his right, as he says he reserved it’ in the surrender to the defendant, his situation would be entirely different; no matter what disposition the Court had made to his objection. A removal of him either by an express order, or by implication from the admission of another, would have been unlawful and wrongful; and he would be entitled to restoration. But after declining in open Court, and not at the instance of the Court, to act in the office; after seeing without objection the Court confer on another the same office, which the interests of the public essentially required to be filled by some person; after delivering up the office and records in term time to the person thus appointed ; and after a nonuser of the office for twelve months next succeeding; it is too late now to say, that he did not yield it up to the public, there represented by the Court. The judgment of the Superior Court is therefore reversed, and judgment for the defendant on the plea and demurrer.

Per Curiam. Judgment reversed.