#### BENNET HESTER et al. vs. ZACHARIAH HESTER et al.

Where an appellant relies upon the clerk to send up the transcript, and the clerk makes an ineffectual attempt to do so, the appellant will not he relieved by a certiorari, nnless the attempt he such as, if made by the party himself, would have been deemed a substantial compliance with what the law requires of him. If the transcript had been mailed in due time to reach the court, it is probable that would be so considered; but the placing of it in the hands of a gentleman, who is under no special obligations to attend to its filing, is not such a compliance.

The cases of Davis vs. Marshall 2 Hawks 59, and Slate vs. Williams, Ibid 100, approved.

The transcript of the record in this cause not having been *312filed within the time prescribed by law, (1 Rev. Stat. ch. 4, sec- an aPPlicati°n was made by the appellant’s counsel for a certiorari to bring up the record. The application was founded upon the following affidavit of Henry W. Miller, Esquire: “A short time before the last Term of the Supreme .Court, Mr. Willie, Clerk of the Superior Court of Granville,” (where the cause was tried.) “ handed me a letter directed to Mr. Devereux,” (one of the appellant’s counsel) with a request that I should deliver it to Mr. Devereux on his arrival. On the back of the letter was endorsed “ Hester vs. Hester.” Not knowing that the papers were a transcript to the Supreme Court, I placed them amongst the other letters in my possession belonging to Mr. Devereux. Mr. Willie has informed me that he requested, at the time the papers’ were .handed me, that should Mr. Devereux not reach town before the meeting of the Supreme Court, I should give them, to the clerk. This request 1 did not hear; though it may have been made without my noticing it, as I was busy at the time preparing my papers as one of the clerks of the Senate. Most of the letters directed to Mr. Devereux, which were in my hands, I gave him immediatly on his arrival, but those in the case of Hester vs. Hester, I did not, having overlooked them for several days after he came up. I think Mr-Devereux remarked at the time, it was too late to file them. I had no idea that Mr. Willie had given me a transcript to the Supreme Court, or I should most certainly have handed it without delay to the clerk.”

June 1839

Devereux and W. H. Haywood for the applicants.

Badger contra.

GastoN, Judge.

We think that this application fora cer-tiorari must be refused upon the principles heretofore established by the Court. In Davis v. Marshall and Russell, 2 Hawks 59, and the State v. Williams, 2 Hawks 100, it was ruled, that where the appellant trusts to the clerk to send up the transcript, and the clerk neglects to do it, the appellant must abide the consequence of the carelessness or forgetfulness of his agent. The principle must apply with é-qual force, where the clerk ineffectually attempts to send it *313up, as where he wholly forbears from doing so, unless the attempt be such as, if made by the party himself, would have been deemed a substantial compliance with what the law requires of him. If the transcript had been mailed in due time to reach this Court, this, it is probable, would have been so considered. Erwin v. Erwin, 3 Dev. 528. But the placing of it in the hands of a gentleman, \Vho is under no special obligations to attend to its filing — whose own engagements may render him inattentive to, or forgetful of, the commission with which he is troubled — is not such a compliance. The appellant or the appellant’s agent, trusting to the performance of such an act of friendship) must run the risque of its nonperformance.

Putt Curiam. Certiorari refused.