#### THOMAS A. SHARPE v. J. N. McELWEE.

Where a petition for a certiorari sets out that the petitioner was detained at home by violent sickness when his cause came up in the County Court for trial, and afterwards, during the whole of the term, aud that Mter judgment, his counsel prayed and obtained an appeal to the Superior Court, upon condition of his giving security for the appeal, which lie failed to 'do, by reason of his detention at home, it Was Held that these facts were sufficient to rebut the idea of his having abandoned his right to appeal, and entitled him to a certiorari.

Where a judgment had been tendered against a surety on a bail-bond, in the County Court, and he filed a petition foi a certiorari in the Superior Court-, stating that he expected to be able to discharge himself from liability by the next term of the court by a surrender of his principal, it was Held that this statement did not render him obnoxious to the charge of appealing merely for delay.

Appeal from an order dismissing a petition fora certiorari, heard before Dick, J., at the last fall Term of Mecklenburg Superior Court.

*116The petition discloses the following facts: The petitioner and one Cook, were special bail for one James "Whitesides* A judgment was obtained against Whitesides in the County Court of Mecklenburg, upon which execution issued and was returned “ nulla bona.”

A sows facias then issued against the petitioner and Cook. '"When the sci. fa. was executed upon the petitioner, he employed counsel, who appeared and entered his pleas, at January Term, 1859. The cause was then continued until April Term, 1859, when petitioner attended court and spoke to his counsel about his said cause, this occurred on Tuesday of the term ; on Tuesday evening he returned home, intending to return to the. court-house during the week to attend to the said cause; that on the same evening he was taken violently sick, and was unable to return to town or attend to any business during the remainder of the week ; that when his cause was reached, his counsel was not informed of his sickness, and being compelled to try the cause, judgment was obtained against petitioner and Cook, that his counsel prayed an appeal from this judgment to the Superior Court, which was granted and entered of record, but that petitioner failed to give security on account of his absence,, and that his said absence was occasioned solely by the sickness aforesaid. The petition further states, that petitioner expected to be able to discharge himself as bail, by surrendering his principal by, or before, the next term of Court.

Upon the return of the writ, the defendant moved to dismiss the petition. Motion allowed. Petitioner appealed to this Court.

Wilson, for petitioner.

Lowrie, for defendant.

Pearson, C. J.

"Where an appeal is not prayed for, the certiorari is not a matter of course, and the court will exercise a discretion in regard to the application. In such eases, the petition must account for the fact, why an appeal was not *117prayed, and. there must be an affidavit of merits, setting out the facts on which the party founds his belief, that he has a good defense, so as to satisfy the court that his belief is well founded. Where an appeal is prmjed for, and the court refuses t@ allow it, or the party is unable to give the security required by law, the certiorari is granted as a matter of ■course; Bledsoe v. Snow, 3 Jones, 99 ; McConnell v. Caldwell, 6 Jones, 469. It is, in effect, a mere application to be allowed to file anappeal bond, mmc pro tunc.

In our case, an appeal was prayed for and granted upon giving an appeal bond -according to law, and the ease did not ■come .up, because the bond was not given. So, the only question is, did the party fail to give the bond, because he had abandoned his right t>© appeal, or beeanse he was unable to procure the security required by the -law, so as to acquit him of laches ? Upon this point, the petition and affidavit are entirely satisfactory; for the.petition-sets forth, that the defendant attended Court and went home, intending to return during ■the week and .attend to -his ease, but was taken violently sick and was -unable to return,-or attend to any business during the rest^of the week.” This accounts for his not giving the bond, and excludes all idea of his having abandoned 'his right t& appeal, .and fully acquits him of any imputation of laches. As a matter of course', the party -ought to be put in the same ■condition as if the appeal had been brought -up in the regular way.

It was objected, on the argument, that the petitioner, by his own.showiDg, had no defense at the time the judgment was rendered against him, and took the appeal, because he ■expected to be able to discharge himself, as bail, by surrender of his principal, by, or before, the term of the Superior Court to which sthe appeal was prayed, and tiiis, as was insisted,-proves that .the appeal was taken merely for delay, and .should, therefore, be made an exception to the general rule above stated. In support of this position, Betts v. Franklin, 4 Dev. and Bat. 465, was relied on. It is true, the petiáksser admits he had no defease at the time the judgment was *118rendered in the County Court, but it does not'follow that the-appeal was taken merely for delay. On the contrary, the avowed object for appealing was, because the party expected to have a good defense in the Superior Court, and to be then and there able ro avail himself of his right to be discharged by the surrender of his principal, according to the provision of the statute, made in favor of bail. So, the appeal was not for delay, and no reason can be suggested, why one, who is not in default, should be deprived of an opportunity to make available a defense, which is given to him by law, and should not be at liberty to extend the time by appeal or certiorari^. as a substitute for an appeal, as far as he is entitled to do, according to the course of the courts, without being obnoxious to the charge of appealing merely for delay.

The case of Betts v. Franklin, is not in point. No appeal was prayed in that ease, and being on a ca.. sa. bond, the party could not afterwards discharge himself by a surrender of his principal. So, he did not expect to be able to make a defense in the Superior Court, and lhe certiorari could answer no-other purpose but to delay judgment. The general remark made by the Court, in that case, must be referred to circumstances, then presented, and have no application to the case now tinder consideration, which is peculiar, because of the right given to bail, to make a surrender at any time before he is fixed with the debt.

There is error. The judgment, dismissing the eeriio?'arif is reversed, and the case should be put upon the trial docket.

Per Curiam,

Judgment reversed',.