The question for the consideration of the Court in this case is whether a writ, attested in the name of National Lane, who was not clerk of the court, but which was signed by Simon Turner, who was the clerk, can be sustained. The defendant, by his attorney, having pleaded this defect in abatement, and the plaintiffs, by their attorney, having demurred to said plea.
The Court are of opinion that the thirty-sixth section of the Constitution of this State, which states "that all commissions and grants shall run in the name of the State of North Carolina, and bear test, and be signed by the Governor; and all writs in the same manner, and bear test, and be signed by the clerks of the respective courts, " governs the present question. That this attestation is so substantiated and material a part of each and every writ as to render all those abatable which do not contain such attestation. They are, therefore, of opinion that the demurrer to the plea be overruled, and the writ abated.
Cited: McLeod v. Pearson, 208 N.C. 540.
NOTE. — See Dudley v. Carmolt, 5 N.C. 339; Shepherd v. Lane,13 N.C. 148; Worthington v. Arnold, ibid, 363; Gardner v. Lane, 14 N.C. 53. *Page 501