ZACHARIAH TRICE vs. YARBOROUGH AND RAY.

Where a judgment was rendered against a party in the Superior Court of county which is distant from that .in .which'he resides and in which he has few acquaintances, where he had been induced to believe the verdict of the jury would be in his favor, when the court did not decide on his motion for a new trial until the last day of the term, when he had prayed an appeal to the Supreme Court and it was granted but he was unable after all his exer* tion to obtain sureties'for the appeal in the county where the suit was tried» and he moreover set forth in his affidavit that .he had merits onhis side; the court granted a certiorari.

This was a rule for a certiorari to bring up the proceedings in a suit determined at the last term of Cumberland Superior Court of Law, wherein Yarborough and Ray were plaintiffs and Zachariah Trice, who obtained the rule, was a defendant. Trice’s affidavit stated, that he was an inhabitant of Orange county, and resided about seventy miles distant from Fayetteville, the-county seat oí Cumberland county, and had very little acquaintance in -the latter county— that on the appeal in the suit from the County Court he gave good sureties, both inhabitants .of Cumberland -county, whom he had indemnified — that he was always advised by his counsel that the plaintiffs could not recover, and entertained no doubt of a judgment in his favor — but he calculated, however, if a judgment should be rendered against him, contrary to his own expectation and that of his counsel, he should be enabled, with the assistance of those, who had been sureties for his appeal from the County Court, to give the necessary sureties for an appeal to the Supreme Court — that in this expectation he was disappointed, after he had prayed the appeal to this court, although he made every exertion to procure such sureties. His affidavit further stated that he was advised the judgment against him was not according to law, and he annexed a statement of the case as made out by the presiding Judge.

On the return of the rule, several, counter affidavits were filed, made by citizens of Fayetteville, who stated they were *12well acquainted with Trice and had done business for him —some stated they had been applied to to bpcome his sureties to the appeal and had refused — others that they had not been called on, and would have refused if they had been applied to.

Strange and Iredell for Trice.

Henry for defendants.