#### Brickell v. Bass.

Tiie neglect of bringing up an appeal under the act of 1777, Rev. eh. 115, s. 77, in proper time, is not ivlievable by certiorari, although occasioned by the neglect of the Clerk; and the appellee may move for the affirmance of the judgment with double costs, either at the first or any other term, after the appeal.

This was an appeal in an ejectment cause from the County Court of Nash. The jury below had found for the Defendant — and the appeal was returnable to this Court in October term, 1793. It was not then transmitted to the Clerk of this Court, but in April, 1794. The. *158Comise! for the Defendant having- a copy of the record in his hand, moved to have it entered of record in this Court, and the. judgment affirmed with double coats, agreeably to the. act of 1777, ch. 2, sec. 84. The Counsel for the Plaintiff then moved for time to procure an affidavit for removing the cause, by certiorari, «Hedging the neglect of the Clebk of the County Court, who had been applied to in time and failed io.give a. transcript of the record : and now at this term, the motion for affirming the judgment was renewed and the affidavit for the certiorari produced. It; stated (hat this cause was tried in May, 1793 ; and that in August, 1793, BrickelVs attorney had declined practice in that Court; but had applied by Mr. Hall, the attorney left to finish his business, to the Clerk for a transcript of the record, to be brought up and lodged with the Clerk of this Court. Mr. Hall intending, could he, have procured it, to have brought it up- .himself — but was informed by the Clerk, that he had not* then time to make it out, but that he would hand it in tim’e to the office of the Superior Court Clerk. .Upon this affidavit the Plaintiff’s Counsel contended, that tiie act of 'Assembly only contemplated the affirmance of judgment and double costs, in erases where the appellant craved the appeal for the purpose of gain-, ing time, and delaying the other party; but many cases had occurred, where the appellant leaving been hindered' by accident, or the default of the Clerk, from bringing up bis appeal in time, had been helped by certiorari; and that lie understood the rule in such cases to be this, where it was not owing to the default or neglect of the appellant, but to some other cause pot under his controul, that the appeal was not brought up in time, he should be relieved by certiorari; for it frequently'happens that the appellant has good cause for his appeal, and may intend to prosecute it, but owing to the default of the Clerk of the County Court, or to some other cause not imputable to the appellant! he may be prevented from having it removed in time; and then surely it would be great injustice, and not within the true meaning of the act, that the judgment appealed from should be affirmed.

Judge Macay — The act is express!, that unless the transcript be filed with the Clerk of the Superior Court fifteen days before the commencement of the term, the judgment shall be affirmed with double costs; and I cannot narrow down the operation of the act, by guessing *159at what was fhr* probable meaning of the Legislature. If the Clerk has (lone amiss, lie is liable to pay a fine to the party ■grieved, and to answer him in damages; as also to he pro scented for a misdemeanor in office ; and that must be the remedy which the Plaintiff must pursue; of course (he judgment must be affirm<(l with double cost, and the motion for the certiorari overruled. The Counsel for the Plaintiff then begged leave to make some other observations, which had escaped him whilst up before, and said lie would submit whether it was not now too late to move for an affirmance of the judgment — the appeal was returnable to October term, 1793, and the first day of that term was the day in Court given to both parties ; in like manner as if a writ or any other process had been returnable to that term, that would ha\e been the day given to both parties to appear; if in sueh case, the Plaintiff hud not caused the writ or o*>«tfisí^ls¿;ss to be returned, and the Defendant she on, and the cause continued in Co ven to the parties, it would be r of that cause, and a dismission of t ■farther attendance on it. So he pellee beinig both to appear in Oct appellee to answer to the appeal move for affirmance of judgment, if ,. . the time having passed without any thing dime,'or any motion made on either sido, op any further day .given, they were after the expiration of that term both out of Court, and <ould not be again brought in hut by some new process ; otherwise this inconvenience would result, that ten years afterwards the appellee might come into Court, and move for the affirmance of the judgment, am! double costs, when perhaps in the mean'time, the appellant might have satisfied the appellee, or obtained his release or other discharge from the demand or cause of action, and lie would-have no opportunity to shew this against the motion for the affirmance of the judgment, if the appellee may move for the affirmance at the second term, lie may mote by the same reason at the fourth or fortieth term after — lie may wait until the evidence of the release or discharge be destroyed, or till the appellant has moved away to another State or country, and then subject bis bail here, or such property perhaps - a« was bound by the judgment in the County Court, though in the hands of a bona fide purchaser.

*160Judge Macay — It might have been proper perhaps, in forming the first decisions upon this clause of the act, for the Courts to have held it necessary to move for the affirmance of judgment at the first term of the Superior Court after the appeal prayed; but the uniform practice hath been to move for the affirmance at any term after; and cited some adjudications in this circuit at Newbern to that effect; and therefore notwithstanding this latter objection, he ordered the judgment to be affirmed with double costs, and it was affirmed accordingly.

Note. — As to what circumstances will be deemed sufficient to entitle a party to a certiorari see Chambers v. Smith, post 366, Robertson v. Stowe, post 402, McMillan v. Smith & Walker, 2 Car. Law Rep. 77, Dyer v. Rich, 2 Car Law Rep. 610, Steele v. Harris, ibid. 636, Hood v. Orr, N. C. Term Rep. 151, Davis v. Marshall & Russell, 2 Hawks, 59, Mera v. Scales & McCain, ibid. 364. zThe propriety of the other part of the decision was denied by Haywood Judge, in an anonymous case, post 171.