#### DANIEL BAKER vs. MATTHEW HALSTEAD & CO.

Where a party litigant is denied his right to appeal, or deprived of it by fraud or accident, or inability to comply with the requirements of the law, he may have the writ of certiorari.

But otherwise, wlicn his failure to appeal or make defence was the result of his own negligence, or where he trusted his interests to an unfaithful agent.

Where a judgment was obtained in the County Court against B. & L. upon a note which B. had signed in blank for L., for renewal at Bank, and which L. had altered by erasure, and filled up, and transferred to H.; and B. had trusted to L. to employ counsel to enter pleas in bar, who suffered judgment to be taken against both: — Held that B. was not, under these circumstances, entitled to the writ of certiorari.

(The cases of Kelsey & JBrigman v. Jervis, 8 Ire. 451. Betts v. Franklin, 4 Dev. & Bat. 465, and State v. Bill 13 Ire. 373, cited and approved.)

This was an application, on the part of the plaintiff to the Superior Court of Law of Cumberland county, on the last Circuit, his Honor, Judge Caldwell, presiding, for a writ of certiorari, to bring up the record of a suit in which j udgment had been obtained against him and one Latta in the County Court of Cum*42berland, by the defendants, Halstead & Company. The petition set forth the following facts: Latta was a merchant in Fayetteville, and the plaintiff had, on several occasions, endorsed for him in Bank there, and living in the country, had several times endorsed for him in blank, with only the amount in figures set out at top— the understanding between them being that Latta should fill up the blanks, and that the notes were only to be used for renewal at bank. The note on which judgment was obtained in-the County Court, was one of these blank notes, (left with Latta to renew one in Bank,) bearing date the 20th May, 1851, and payable eighty-nine days after date. This note was applied to the renewal of the Bank debt, and being afterwards taken up by Latta, he, unknown to the plaintiff, altered the figures at the top, set out $407 56, filled it up for the same amount, altered the date to September 22d, and the time of payment to 8 months, and passed it to the plaintiff’s merchants in New York, in discharge of a debt he owed them. The erasures and alterations were distinct and barefaced; and the petition charges fraud and collusion between Latta and the assignees of the note. Suit was brought by defendants to June County Court, 1852, and the plaintiff being-surprised, and intending to employ counsel, saw Latta, who assured him that he had done so, and a full defence should be made. But Latta pul in only a dilatory plea; and at September Term the plea was withdrawn, and judgment taken against both defendants, the plaintiff and Latta. The petitioner further states, that the facts of the fraud did not come to his knowledge until after judgment had, and execution issued, he being kept in ignorance thereof by the false instructions given by Latta to his counsel, and by Latta’s assurances that a full defence should be made.

Upon this application, his Honor granted the writ as prayed for; and upon its return to the same term of the Coxrrt, on hearing the petition, with the accompanying affidavits, gave judgment dismissing the certiorari. From which judgment the plaintiff prayed for and obtained an appeal.

¡Strange, for the plaintiff.

W. Winslow, for the defendant.

Nash, C. J.

The writ of certiorari is used in this State *43mostly as a substitute for an appeal; and when a case is so brought up to a higher tribunal, the trial is de novo. There are very few cases in which a party, dissatisfied with the judgment of an inferior Court, may not appeal to a higher one, and thereby entitle himself to have his cause heard again; and when the right of appeal is not given, the writ is used as, or in the place of, a writ of error, to reverse and correct errors of law only. The cases cited by the plaintiff’s counsel show that the principles governing the writ of certiorari have often been discussed in this Court, and we had hoped set forth so plainly, that no mistake could exist on the subject. We cannot state those principles more plainly than we have done, and therefore will not enter upon a discussion of the reasons upon which they are founded, but content ourselves with simply again stating them. Where the proceedings of an inferior tribunal are not according to the course of the common law, a party, conceiving himself-aggrieved by its decision or judgment, is entitled ex debito justitice, to a writ of certiorari to remove them to a higher tribunal for revision, in a matter of law, as in other cases, on a writ of error. Where, by the law of the Siate, a parly litigant in an inferior tribunal is entitled to an appeal, and this right is denied him, or he is deprived of it by fraud or accident, or inability at the time to comply with the requirements of the law, lie' may have a writ of certiorari to obtain a revision of his case in a Superior Court.

In this case, the petitioner was entitled on the trial in the County Court to an appeal from its judgment; a right, of which he’was deprived by his own showing, by no default of the Court, nor by any fraud, of which in this case he has a right to complain, accident, or inability to comply with the conditions of an appeal. If he is injured, it is his own fault or negligence. He was the endorser in Bank for a Mr. Latta. Living at some short distance from the town of Fayetteville, where the notes were to be renewed, he furnished his principal with blank notes. "Latta, instead of appropriating the notes to the purpose for which they were intended, transferred the one now in dispute to a creditor of his in New York, the defendant in this proceeding, who brought an action upon it when at maturity against both the maker and the endorser. Upon the writ being served upon him, the petitioner had *44an interview witli Latta, complaining of Ills conduct., and informed him of liis intention to employ counsel to defend him, “ when Latta assured him he had employed counsel, and that a proper defence should ho made.” The petitioner, according to his own statement, took no further steps in the case, but Rusted his interest to the care of his co-defendant, who, upon the trial, withdrew his plea and gave the plaintiffs a judgment. Other facts and circumstances are stated in the petition, which are not adverted to, because they do not touch the point upon which the application for the writ is refused. We refuse it, because a proper case for its use is not stated. The case below is one where an appeal lay at the instance of either party; no appeal was asked for; the defendant trusted his interest to an unfaithful agent, and who must have known that he had been unfaithful in that particular transaction, and grossly so. Having lost his right of appeal by his own negligence, in not attending to his own business, he has no right to ask the Court for its aid through a writ of certiorari. A petition for such a writ must set forth two things: first, a good de-fence existing at the time .when he ought to have pleaded; and secondly, a good excuse for his laches in not pleading or not appealing. 8 Ire. 451. Kelsey & Brigmnn v. Jervis, 4. Dev. & Bat. 465. Betts v. Franklin, 13 Ire. 373. Stale v. Bill. The judgment of the Court below is affirmed.

Peu Curiam. Judgment affirmed.