#### DEN ON DEM. OF DANIEL MURRAY et al. vs. ANDREW SHANKLIN.

June 1839

Where a judgment had been given pro forma in the Court below, and. an appeal taken to the Supreme Court in order to get its decision up on certain questions, but the Judge omitted malting up a case during the term, and - the attorneys of the parties took'the papers from the Clerk’s office and carried them off for the purpose of making out the case, and did not return them to the office till it was too late for the Clerk to send up the transcript in time, which he swore he would have done had the papers been returned soon pnough, a certiorari will be granted to'lhe appellant, upon his .deposing that he never intended to abandon his appeal.

A motion was made for a certiorari, to bring- up the re.cord in this case. It appeared that the action had been brought, by order of Court, for the purpose of deciding certain questions of title and possession, material in a petition for partition, pending between the parties; that the jury found a verdict for the lessors ofthe plaintiff, subject to the opinion of (he Court on a case agreed; and the Court, pro forma, gave judgment for the lessors of the plaintiff; That the defendant appealed, and it was agreed by the lessors of the plaintiff, that-he should not give security for the appeal.’— The deputy Clerk of Hyde Superior Court stated in, his affidavit, that the case for.the Supreme Court was not made up by the Judge during the term ; and that the papers in the cause were taken to Beaufort County by the attorneys in the cause, and he did not get them back to Hyde in time to make out a transcript before Friday in the second week in June, when he mailed the transcript for the Supreme Court. The transcript did not, and could not, arrive in time. The defendant deposed that he never intended to relinquish his ap peal; that his attorney promised that he would see that the case should be sent to the Supreme Court.

Denereux for the defendant.

Badger for the lessors of the plaintiff.

Daniel, Judge,

after stating the facts upon which the motion for the certoirari was founded, proceeded as follows : If the case had rested simply upon the neglect of the defendant or his attorney in not sending the transcript to this Court *277in time, we should have had no hesitation in deciding against the motion. But there are other circumstances, ari- ° ’ sing out of the case and the affidavits, which induce us to think it ought to be granted. First, there was no other mode of bringing the case to this Court but by appeal, and therefore that form was obsérved, but it is apparent that, in substance, the cause was to come up by consent. The case underwent little or no examination in the Court below, and it was the intention of the Court and both the parties, that it should be brought here for a full examination and final determination as to the law. Secondly, the papers belonging to the office, irom which the Clerk was to make a perfect record, had been taken from the office by the consent of each of the attornies, and carried with them to another county (we - suppose to make out a case) and were not returned in time, so as to enable the Clerk to make a transcript to reach this Court in time. If the case had been made out in term time by the Judge or the Attornies ; and the papers belongr ing to the cause had not been carried away, the Clerk himsplf, it seems, would have sent the transcript here intime, although not bound to do so. The defendant did not mean to abandon his appeal, and if he had called at the office for the transcript, he could not have got it in time. We think, for these various reasons, that a certiorari ought to issue as prayed for.

Pur. Curriam. > - Certiorari ordered.