#### THE STATE, upon the relation of JESSE DICKENS v. THE JUSTICES OF PERSON COUNTY.

Where a clerk, elected prior to tire act of 1839, c. 2, during’ good behaviour, was in Court, when a person elected under that act was admitted as clerk, and made no objections to the Court against such admission, but surrendered the books and papers to the new clerk, and likewise neglected to tender his bonds, which he was bound by law to renew at that term, *it was held,*that such conduct amounted to an abandonment of the office, and justified the admission of the new clerk.

Where the proceedings under a writ of *mandamus*axe dismissed, the relator may be ordered to pay the costs.

A writ of mandamus was obtained at the instance of Jesse Dickens, directed to the Justices of the County Court of Person, commanding them to restore said Dickens *407to the office of Clerk of their Court, from which he alleged he had been illegally ejected, or to signify their reasons for failing to do so. To this writ the Justices made a return signed by their chairman, in which they say, *“*that they decline to restore the said Dickens to office, for two reasons: 1st. Because Charles Mason was duly elected to the said office by the people, under the act of 1832, c. 2, and regularly admitted into the office, at September term of said Court, 1833; and, 2d, Because the said Dickens failed at the said term to renew his official bonds, as by law, he was bound to do; for he had not renewed them since September Term, 1832; and also, that the said Dickens did not object to the admission of the said Mason into office, but voluntarily surrendered to him the records of the office.” From the petition upon which the writ was obtained, and from the facts agreed, it appeared, that Dickens was duly elected clerk during good behaviour, in the year 1793; that from that period, to September Term, 1833, he had continued in the said office, acting as clerk, and had regularly renewed his bonds as required by law; that at September Term, 1833, when his bonds were again to be renewed, he carried clerk’s official bonds written out, but not signed, into Court, but did not 'tender them to the Court; that one of the first acts of the Court at that term, was to receive Mason as Clerk; whereupon Dickens, who was then sitting at the Clerk’s desk, said to his deputy, but not so as to be heard by the Court: “ They have taken the office from us, we must give it up;” and retired. It appeared, further, that Dickens was not a candidate for election before the people; and that at a term subsequent to that of September, 1833, he tendered his bonds to the Court, when they were refused.

This case coming on to be heard at Person, on the last Spring Circuit, before his Honor Judge Maktin, upon the petition, writ, return, and the facts agreed, the proceed- ' ings were dismissed at the costs of the relator, and he appealed.

*J. W. Norwood,*and *P. H. Mangum,*for the plaintiff.

*TV. A. Graham, contra.*

*408Daniel, Judge,

after stating the case, proceeded: — This case was within the reasons of the decision in *Williams*v. *Somers,*ante, 61. Dickens was present, and made no objections to the Court, at the time Mason was sworn in, but surrendered the books and papers to him. He neither claimed the office, nor tendered bonds, as by law he was bound to do, at that term. The abandonment of the office was conclusively to be inferred from these facts. The observations to the deputy were not communicated to the Court, and could not be acted on by the Court; and consequently cannot affect the decision of this Court. The judgment must be affirmed.

In England, the king is considered the prosecutor in writs of *mandamus;*and at common law, neither received or paid costs. Though upon discharging a rule *nisi,*the costs of the motion was in the discretion of the Court. 1 Chit. Prac. 809. In this case, the costs must be paid by the relator Dickens, it being in the nature of a rule *nisi.*

Per Curiam. Judgment affirmed.