#### WILLIAM LANCASTER vs. JOSEPH BRADY, ADM’R.

Where the merits of a case tried before ajustice of the peace, are clearly and decidedly for the party cast in the trial, and there were circumstances tending to show fraud and collusion between the successfulparty and the magistrate, who were brothers, to deprive the former of a fair trial, and of the right to appeal; Held, that a recordad was proper to be issued, and a now trial should be had.

PetitioN for a Reoordari in the Superior Court of Craven County. On the return of the writ of recordari, which had been issued in this case, the petitioner’s counsel moved that the cause recorded and sent up to the Superior Court, should be placed on the trial docket, his Honor, Judge Manly, presiding.

The petitioner, in his petition, set forth that the defendant, as the administrator of one Caswell Gardner, suing to the use of George W. Street, obtained a j udgm'ent against him before one Samuel R. Street, ajustice of the peace of Craven County, on a certain day in October, 1855, for sixty dollars and seventy-five cents, with interest on the same from the 27th of March, 1848, on a note which petitioner had given to Cas-well Gardner on said 27th of October, 1848. He further alleges that on the 12th of September, 1848, he paid Caswell Gardner sixty dollars on that note, and took his receipt for the same, which he has ready to produce. He states that when he made this payment, Gardner said he had not the note with him, but it was supposed to be nearly enough to discharge the amount; and that he heard nothing of this from that time until George "W. Street presented it to him for payment, stating that he had bought it from John Z. Gardner, a son of the said Caswell, for twenty-five dollars, although the petioner is amply good for the amount. lie alleges further that he then stated to George W. Street, the facts in relation to the payment, and offered to pay him the small balance actually due on the note, but as he did not have the receipt with him nothing more was done in the premises, except that Street *80agreed, if the receipt was not too large, he would allow it, and make a fair settlement.

He further alleges, that some time in September, 1855, he was warranted on said note, and ordered to trial before Samuel R. Street, a brother of the said George W., at Swift Creek Bridge, on the --day of-, and that he attended on the day, and at the place, (arriving there about 12 o’clock) when he was informed that his case had been tried, ■and a judgment rendered against him for the full amount of the note, and that the magistrate had gone off with the papers. He says that, being ignorant of the law, and at a distance from any one with whom to counsel, he asked several intelligent gentlemen who were present for advice, who informed him that a new trial in the case was a matter of discretion with the magistrate, and as it was plaintiff’s brother who had the papers, in all probability he would not grant one, and that the petitioner could not appeal, because he was not present at the trial. Before he could obtain legal advice the ten days had expired. He says he intended to be present at the trial with his receipt, but was unavoidably prevented from doing so.

George W. Stn-eet, for the defendant,

in his answer says, that he knows nothing of the payment and receipt, but what the petitioner told him, and he replied on that occasion, that if the receipt was just and right he would allow the same. He says he is informed and believes that Lancaster, the petitioner, did not make his appearance on the day and at the place of trial until about 4 o’clock.

¡Spier, the officer, states in an affidavit, that he summoned the petitioner to appear in the case mentioned, at 12 o’clock, on 1st of September, 1855, before Samuel R. Street, and that the warrant was not returned until about 8 1-2 o’clock on the day ; that the said petitioner had not then made his appearance.

Samuel R. Sweet, the justice of the peace before whom the warrant was tried, stated to the same effect with the affiant Spier.

*81 Riley Causey's affidavit establishes the genuineness of the receipt for sixty dollars alleged by the petitioner.

On considering the motion submitted, his Honor stated that “ the' excuse of the petitioner for not producing his receipt before the- justice, and appealing, in case it was not allowed, is not explicit or entirely satisfactory; but the merits in respect to. the payment alleged,, seem tobe so decidedly in his favor that I have thought it right to give him an opportunity to establish it before a tribunal not aldn to either party.” Accordingly he granted a new trial, and ordered the case to he, put on- the trial, docket. Erom this decision the defendant appealed.

No counsel' appeared for the pl'aintififin this Court.

Oreen, for defendant..

Nash. C. J.

There is such a conflict in¡ the testimony relative to the-circumstances attending the-trial before the magistrate, that we have been in. some doubt as to the judgment to be rendered. The petitioner swears that he did attend at the place,, and at the time, to which he was summoned — at 12 o’clock of that day, when, he was informed that the trial was over and, judgment rendered against him, and that the magistrate, had gone away; that he consulted some persons present what course to pursue, when he was told, not being at the trial to obtain an appeal he must procure a new trial. This he did' not attempt to do, for he was further told, the magistrate, who gave the judgment, was the brother of the plaintiff, and would not grant him one. The justice and the officer both swear that the judgment was not given till three o’clock, and that delay was occasioned by the non-attendance of the petitioner. The note is for sixty dollars and seventy-five cents.- The petitioner swears that he paid to Caswell Gardner, on the note, the sum of sixty dollars, on the 12th of September, 1848 ; that the note not being present, he took from Gardner a receipt for the amount, neither of them remembering the exact amount. Upon these affidavits, consid*82ered alone, we should refuse the application. But there were other circumstances attending the case, which lead us to think there was foul play. The plaintiff in the judgment, knew that the defendant claimed a credit on the note of sixty dollars, evidenced by a receipt, leaving but a small sum due. He treated with the defendant upon the basis of that receipt. He was the purchaser of the note from the son of Caswell Gardner, to whom it was payable, at the price of twenty-five dollars, and agreed to allow the payment if not too large ; yet, the judgment is taken, without reference to the payment, for the full amount of the note. Again, the receipt given by Caswell Gardner to the petitioner, for sixty dollars, is proved by Riley Causey, to be in the hand-writing of Gardner. The petitioner alleges he paid the money on the note on the 12th of September, 1848, and heard no more of it until presented for payment by the son of Caswell Gardner, who was then dead, and had been for some time. The note bears date 28th of March, 1848. Now, it may be asked, why did not Caswell Gardner, in his life-time, endeavor to collect the note? "Why did not his administrator, Brady, do so ? Erom September, 1848, the date of the receipt, to July, 1855, near seven years, the note is permitted to lie dormant. These things are mentioned not as proving the existence of the receipt, but as circumstances to prove that the trial before the magistrate Street was not obtained in good faith, but in fraud of the rights, of the petitioner. Another strong circumstance showing the fraud is, that the magistrate, who gave the judgment, was the brother of the plaintiff. The law forbids any one to try his own eause, and justice, propriety and delicacy, forbid a Judge to sit in judgment in a matter affecting the interest of a near relative. I am proud to say, it is the first instance of the kind within nay knowledge in North Carolina. But again, the conduct of this magistrate, after rendering the judgment, was such as t© excite strong suspicion, that he did not intend that the defendant should get either an appeal or a new trial. When the defendant got to the place of trial, he found judgment given against him, .and that the magistrate had gone off *83with all tbe papers. A party complaining of a magistrate’s judgment must pray his appeal at' the time of the trial, but surely the law does not require it to be done instcmter. He has the whole day within which he may appeal, or surely a reasonable time to make up his mind whether he will appeal or not. But the defendant might have applied to another magistrate for a new trial if Street had not taken the papers with him. In cases allowing an appeal, the party complaining and suing for a reeordari, must show that he was prevented from appealing by fraud, accident or mistake.

In the language of his Honor, “ the excuse of the^petitioner for not producing his receipt before the magistrate, and appealing in case it aves not allowed, is not explicit or entirely satisfactory; but the merits in respect to the payment alleged, seem to be so decidedly in his favor, that I have thought it right to give him an opportunity to establish it before a tribunal connected with neither party.” Eor the reason so assigned by his Honor, and upon the well-grounded suspicion of fraud on the trial, we think with his Plonor, that the petitioner is entitled tó his reeordari, and that the case should be placed on the trial docket as he swears to its merits. This opinion Avill be certified.

The judgment below is affirmed.

Pek Oubiam. Judgment affirmed.