#### State v. Saunders.

From Johnston.

Under the act of 1823 for the promotion of agriculture, the clerk proceeded against for not making a return, may make his excuse to the Judge of the Superior Court, and on the sufficiency of the excuse the Judge of the Superior Court will decide in his discretion. This Court will not revise the exercise of such discretionary power.

This was a proceeding which commenced by *scire fa-cias,*issuing under the act of 1823 to promote agriculture, &c. against the defendant, as former clerk of Johnston County Court, to show cause wherefore judgment should not be entered against him for the sum of Si,000, for his failure to make return on oath of all monies in his hands as clerk, pursuant to the act.

The matter was heard below, before Donneid, Judge, when the defendant offered as an excuse for his failure the facts set forth in an affidavit which he made. The substance of the affidavit was, that defendant was ap*199pointed clerk of Johnston County'Court in Nov. 1786, and held the office until February, 1818; that in the year 1810, he appointed a deputy, who from that time took the entire management of the office in the receipt and payment of all monies therein; that prior to the appointment of his deputy, when he bestowed his personal attention to his office, there was no law requiring him to keep a statement of monies received from, or paid to, individuals, and that he kept none such; and during the time that he performed the duties of clerk by deputy, he could not procure such statement hut by his *personal*attention to the business, and his deputy would then have been useless; that his deputy died in 1823, and therefore his aid in making such statement was lost; that defendant had been advised that he was not subject to the operation of the law of 1823, because he was not a clerk when it was enacted, having resigned in 1818, and the duty required by it was not imposed by any law while he was in office; but that notwithstanding, he had endeavoured to make such a statement as the law required; this, however, from the lapse of time, the defect of memory, and certain data on which to proceed, he found impossible; and he quit, in despair of being ever able to make a statement to which he could swear with confidence; that he will not swear there is *nothing*in his hands, but he solemnly declares that he doth not know7, nor has he the least recollection of any monies being due from him as clerk.

The presiding Judge deeming the excuse sufficient, refused to grant the motion of the Attorney General for judgment for the forfeiture, whereupon the Attorney Ge-genal, in behalf of the state, appealed.

*Mlorney General,*for the state,

*Badger,*contra.

HendERsout, Judge,

delivered the opinion of himself and brethren, and said,

This is a proceeding against the defendant, late clerk *200of Johnston County Court, under the act of 1823, for failing to make a return of all monies that had come to his hands by virtue of his office, and which had been un-cflj|etj for for t!ie space of three years. The penalty of one thousand dollars attached upon the. defendant for not making his return before the first Johnson Court after the first Monday in August. But the Judge of the Superior Court, before whom process is directed to be commenced to enforce the forfeiture, has the power to excuse him for failing to do so. In this case, the Judge excused the defendant; from which it followed, that the penalty did not attach. There was then nothing on which the proceedings could stand, and the judgment for the defendant followed as a matter of course. We have no right to supervise this discretion of the Judge. This has been repeatedly decided in this Court. Whether this judgment will form a peremptory bar or not, will depend on the construction of the act of 1823; for if the Judge has not the power of entirely discharging him from his accountability, the judgment passed fay him will not affect it.

We can *see*no error in the judgment; it must he af.firmed.

Judgment aeeirmed.