The plaintiff sued the defendant by attachment. The sum demanded was $450. The writ was issued by a single magistrate, and made returnable before him or some other justice of the peace. The attachment was directed to a constable, who had levied it on property belonging to the defendant. In the County Court the defendant, by his counsel, moved to dismiss the proceedings, which was refused by the court, and the plaintiff moved to amend so as to make the writ returnable to the County Court. This was objected to by the defendant, but allowed by the court. From this judgment the defendant prayed an appeal to the Superior Court, which was granted, on condition of his entering into bond for $1,000, with sureties, which he failed to do. The defendant moved his cause into the Superior Court by certiorari, and in his petition states (198) *Page 148 the foregoing facts, and that his failure to procure sureties was owing to the magnitude of the sum required, and, as he was informed and believed, to the improper interference of the plaintiff, Britt. In the Superior Court Britt filed his affidavit, admitting the facts set forth in the petition, except as to his interference to prevent the defendant from procuring the requisite sureties. He further states that his counsel in the County Court objected to the right of the defendant to appear or be heard in the court until he had made himself a party by replevying the property levied on, according to the act of Assembly, and as he was not a party to the suit he was not entitled to appeal from the judgment of the court and, consequently, had no right to a certiorari. His Honor, the presiding judge, being of this opinion, the certiorari, on motion of the plaintiff, was dismissed, and the defendant appealed. In the case sent to this Court it is stated that the plaintiff moved to dismiss the certiorari because the defendant, not having replevied the property levied on, was not in court, and on the other grounds set forth in his affidavit. The first inquiry is, under the circumstances of this case, was the defendant entitled to an appeal from the County to the Superior Court? We think he was. The act of 1777 is very broad and comprehensive in its terms in granting appeals — "if any person, either plaintiff or defendant, or who shall be interested in any judgment, sentence or decree of any county court shall be dissatisfied," etc., he may appeal, etc. Here the defendant was a party, and the only party defendant — against him alone the attachment issued. Before he was entitled to plead it was necessary he should replevy, because the attachment is to compel an appearance. The judgment, from which the defendant appealed, was not one denying him the right to plead, but from one dismissing thecertiorari, denying him the right to bring his case before the Superior Court in that way, because not entitled to appeal. Under the act of 1777 he was entitled to the appeal. The next inquiry is, had he a right to the writ of certiorari, under the circumstances of his case? The petition states, and the answer of Britt does not deny it, that the County Court granted the appeal, upon the defendant's giving bond and good sureties in the sum of $1,000, and he was unable to give the bond, in consequence of the magnitude of the sum designated. The sum was a large one, being more than double the *Page 149 amount of that demanded in the writ. Whether there was any oppression in this or not, is not now to be decided. The defendant swears that he endeavored to procure sureties (201) and failed, and by that inability was deprived of the right secured to him by law. But the law does not suffer any man to be deprived of his rights by frauds, accident or mistake, and the ordinary use of the writ of certiorari is to supply the place of an appeal, where a party has been deprived of it from either of the causes above enumerated. Brooks v. Morgan, 27 N.C. 484. The same cause assigned here by the defendant for not availing himself was assigned by the plaintiff in the case ofTrice v. Ray, 26 N.C. 11, to wit, inability to procure sureties to his appeal bond. But it is said that the defendant had not sworn that he has a good defense to the action, or to merits. In this case we do not deem it necessary that he should state other merits than those apparent in the record. They raise questions of law of material import in the cause, which were proper for the consideration of the Superior Court, to wit, whether the property was not discharged by the alteration of the attachment by the magistrate, and whether the amendments were properly made in the County Court, and for the want of a prosecution bond, after the alteration by the magistrate, besides others. Collins v. Nall, 14 N.C. 224. The defendant was deprived of the remedy provided for him by the act of 1777, by no fault of his, and the certiorari was the only mode by which he could be placed in a situation to have his cause heard.
We are of opinion his Honor erred in the judgment given.
PER CURIAM. Judgment reversed, and cause remanded.
(202)