Johnston County NcArchives Court.....State, V. Saunders 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:11 pm

Source: Nc Court Reports, Vol 11, 1826
Written: 1825

December Term 1825


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 facias issuing under the acts 
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 $1,000, 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 Donnell, 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-(100)pointed 
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 but 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 endeavored 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 it 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 know, 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 General, in behalf of the state, appealed.

Attorney General, for the state.

Badger, contra.

Henderson, Judge, delivered the opinion of himself and brethren, and said:

This is a proceeding against the defendant, late (200) clerk of 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 
uncalled for for the space of three years. The penalty of one thousand dollars 
attached upon the defendant for not making his return before the first 
Johnston 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 by him will not affect it.

We can see no error in the judgment; it must be affirmed.

Judgment affirmed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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