#### JOSEPH BETTS *vs.*ALBERT FRANKLIN.

Dec. 1839

A writ of *certiorari*ought not to be allowed to enable a person to talte advantage of a matter occurring subsequently to the first trial, much less to create a defence by some act to be done posterior to issuing the writ of *certiorari.*Hence where the parties to a *ca. sa.*bond, conditioned to appear in the County Court to take the benefit of the act for the relief of insolvent debtors, were called, and failing to appear, judgment was entered against them and their sureties, *it was held*that the sureties were not, upon the allegation of having been prevented by the fraud of the plaintiff’s agent from making a surrender of their principals in discharge of themselves, entitled to the writ'of *certiorari*to enable them to make it in the Superior Court.

The fraud, in such case, may perhaps authorise- the court in which the judgment was given, to afford relief. At all events, it is the proper subject of jurisdiction of that court, which considers things done that might and ought to have been done. The relief is on the equity, and not the law side of the court.

At the November Term, 1837, of Wake County Court, Albert Franklin and William Mainor were called out upon a bond which they had executed, conditioned for their appearance at that term, to take the benefit of the act for the relief of insolvent debtors, and failing to appear, a judgment was entered up against them and their sureties, Abel Mainor and Green C. Franklin, for the amount of the debt and costs; and thereupon an execution issued against them which was returned to the ensuing term in February, 1838, endorsed by the sheriff with a levy upon the lands of Albert and Green C. Franklin; and upon the said return, a writ of *venditioni exponas*was issuéd to the sheriff, commanding him to sell the said lands. In the ensuing May, before the return of the said writ, Green C. Franklin applied to one of the Judges of the Superior Courts for writs of *certiorari*and supersedeas, upon the allegations stated in his petition, that William Mai-nor, one of the defendants in the *ca. sa.*bond, was confined in the jail of Wake County, during the whole of the term at which he was called out, and that Albert Franklin, the other-defendant in said bond, attended court during the whole of said term; that the sureties intended to surrender them in court in discharge of themselves, and would have done so, but for the reason that they were told by the constable who *466took the bond, that they were discharged, by the fact of one of their principals being confined in jail, and the other being in attendance on the court; that the sureties had been deceived by the constable, who was the agent of the plaintiff, and that they would be great sufferers, unless they could have an opportunity of surrendering their said principals in discharge of themselves. Upon this application, the Judge granted the writs as prayed for; and at the Fall Term, 1838, of the Superior Court for Wake county, it was, on motion, ordered that this cause should be placed on the trial docket, and stand for trial at the next term; and thereupon the defendants, Green C. Franklin and Abel Mainor, brought into court the bodies of Albert Franklin and William Mainor, and surrendered them in open court, in discharge of themselves as sureties or bail in the *ca. sa.*bond given in said case; and they were prayed into the custody of the sheriff by the plaintiff. At the ensuing Term, to wit, Spring Terrn^ 1839, of said court, the defendants, Green C. Frenldin and Abel Mainor. plead a surrender of their said principals, in discharge of themselves as bail, and that the surrender was made at the preceding Term; to which plea the plaintiff demurred. His Honor Judge Bailey sustained the demurrer, and gave a judgment for the plaintiff, from which the defendants appealed.

No counsel appeared for the defendants in this court.

*Badger*for the plaintiff.

Ruffin, Chief Justice.

This is not a proceeding to reverse the judgment of the County Court, for any error of the Court. Upon the face of the record every thing was properly done. The parties were called, and failed to appear, and the judgment on the bond followed-of course. The grievance is, that the creditors deceived or surprised the sure- ■ ties so as to prevent them from, producing the principals in dischare of themselves. We believe the writ of *certiorari*has not hitherto been used in a case like this; and we cannot approve of this novel application of the remedy.

Besides correcting errors of law of inferior tribunals in cases in which a writ of error will not lie, a *certiorari*has *467been allowed as a substitute for an appeal of which a party has been deprived, or which was lost by accident or surprise. The effect of it is to set aside the former judgment, or ver-diet and judgment, and order a new trial in the Superior Court. But it is manifest that the trial in the Superior Court ought to involve the same questions of fact only, which were made or might have been made in the inferior Court; and that the writ ought not to be allowed to enable a person to take advantage of matter occurring subsequent to the first trial, much less to create a defence by some act to be done posterior to issuing the writ of *certiorari.*-It is true, a *certi-orari*has been allowed, and properly, where the judgment in the County Court was by default; and upon it, the judgment has been set aside, and the defendant allowed to plead. that can never be done, unless the party shew two things; first, an excuse for the laches in not pleading; and a good defence. Now the enquiry is, to what time that ° . . fence must refer? It is obvious, that it must have existed at the time the defendant was called on to plead in the original suit; since his claim to this remedy is,.that he was prevented from then pleading it, and that he ought, therefore, to be permitted now to do so as of apt time.

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The case before us is entirely different. The applicant does not allege a surrender of the principals; but on the contrary, admits that there was not. There was, therefore, no defence at law or legal bar at the time judgment was rendered in the County Court. He says he would have made the surrender, if the other party had not induced him to be-A lieve it was not necessary. That fraud is, as a plea in the Superior Court, no bar to the creditor’s demand on the bond. There was no attempt in this case to place it on the record the defence. On the contrary, the sureties came forward to make, in the Superior Court, an original surrender of the principals, and insist on that as the bar. Now, *that*could not have been a defence in the County Court, as it arose since the judgment there; and therefore the *certiorari*ought not to have been granted merely to enable the applicant to make and bring forward that matter. The truth is, that the whole ground of the application is, that the party was sur*468prised out oí a defence he might have made in the County Court; which defence, from its nature, is entirely gone at law, because it was not there made. That surprise may perhaps authorise the Court in which the judgment was given to afford relief. At all events, it is the proper subject of jurisdiction of that Court, which considers things done that might and ought to have been done. The relief is on the equity, and not the law, side of the Court.

The party, upon his own shewing, was therefore not entitled to a *certiorori;*but it issued improvidently, and ought, for that reason, to have been dismissed. That direction must accordingly be given to the Superior Court, with the further one, to issue a *procedendo*to the County Court, that execution may issue on the judgment there. This *will of*course not interfere with the appropriate judgment in the Superior Court on the bond, if any, given for the prosecution of the *certiorari.*The appellants must pay the costs in this Court.

Per Curiam. *Certiorari*to be dismissed.