Opinion
(December Term, 1840.)
A certiorari will not be granted where an appeal has not been brought up, through the inattention or forgetfulness of the clerk of the court, whom the appellant had constituted his agent to send up the appeal.
BADGER moved for a certiorari in behalf of the plaintiff to bring up the record in this case, in which an appeal had been taken by the plaintiff from the judgment of the Superior Court of HALIFAX, but which appeal had not been filed in time. The motion was founded on the following affidavit, which was regularly sworn to:
Robert L. Whitaker, clerk of the Superior Court of Halifax, maketh oath that, soon after the appeal to the Supreme Court was taken in the above case, he was requested by the counsel of the appellant to prepare the transcript, and transmit it to the Supreme Court; that he promised to do so, and was aided by the counsel in making up the transcript; that the transcript was made up in abundant time to be filed in the appellate court. This affiant further maketh oath that he has been clerk as many as four years of the Superior Court of Halifax, and hath been invariably in the habit of transmitting the transcripts of appeal cases to the Supreme Court, and it is the understanding between him and the appellants that he is to do this himself, without any agency on their part. This affiant hath always heretofore done so, and hath uniformly availed himself of the opportunity of sending them by his Honor, Judge Daniel, who resides in the town of Halifax. By mistake, this affiant took up the impression that the last Monday in December was a week later than it actually was; in consequence of which, Judge Daniel left without the transcript, and as soon as the mistake was discovered this affiant mailed the papers for Raleigh, having paid the postage.
Sworn to, etc. ROB. L. WHITAKER.
(354)