In 1821, one Jernigan, against whom Edmondson had obtained a judgment in Wayne County Court, presented to the defendant N. Washington, the clerk of the Superior Court of that county, the mandate of the Chief Justice, directing him to issue writs of certiorari and supersedeas to bring up the record of that judgment, and to supersede execution thereon. The mandate was unconditional in its terms, and Washington issued the writs and the clerk of the county court certified the record, no security having been taken by either of them. Whereupon Edmondson, conceiving this a breach of duty in the clerk of the Superior Court, brought this action upon his official bond.
On the trial in the court below his Honor, Judge Donnell, directed a verdict for the defendants, and the plaintiffs appealed. The judge instructed the jury that the (153) clerk of the Superior Court, in issuing the writ of supersedeas on receiving the mandate of the Chief Justice was not guilty of misconduct in office so as to subject himself and his securities to the plaintiff's action, and in this charge I think the judge was guilty of no error. Laws 1810, ch. 793, directs that in all cases where certioraris are directed to the county courts the clerk of the court shall take security in the same manner and under the same regulations that security is taken on appeals from the county to the Superior Courts. *Page 100
It was the duty of the clerk of the county court to take security as directed by this act, before he obeyed the certiorari, and a refusal by him who prayed such certiorari to give security would be a sufficient excuse and return to the writ. But this act is inapplicable to the present case. It imposes no such duty upon a sheriff to whom a supersedeas is directed; nor is any such duty imposed upon the clerk of the Superior Court who issued the supersedeas, either by law or the mandate of the judge who authorized him to issue it. I therefore think the rule for a new trial should be discharged.
PER CURIAM. The rule for a new trial is discharged.