Howard v. . Person , 5 N.C. 100 ( 1805 )

From Halifax. Howard having recovered a judgment against the administrators of Thomas Person, deceased, the defendants by their counsel moved for a rule upon the plaintiff to show cause why a new trial should not be granted. The clerk (101) omitted to enter the rule. The presiding judge took time to consider whether the rule should be made absolute, and having some doubts upon the case, he declined giving an opinion until he could consult with his brethren of the bench at the next Court of Conference. He addressed a letter to the clerk, informing him of his intention to consult his brother justices at the next Court of Conference upon the rule for a new trial, and directing him to forbear to issue an execution until the opinion of the judges could be known. The judges were of opinion that a new trial should be granted; but in the meantime Howard, the plaintiff, applied to the clerk for an execution, and as the rule for a new trial was not entered on the record, the execution was issued. The administrators of Person filed an affidavit setting forth in substance the above facts, prayed for a supersedeas to stay the execution, and that the Clerk of Halifax Superior Court (in which the court cause was tried) might be directed to enter the rule for a new trial now as of the time when it ought to have been entered. The question arising upon this affidavit and this application to amend the record was sent to this Court. Let the Clerk of Halifax Superior Court enter the rule for a new trial, now, as of the time when it ought to have been entered; and let the judgment which he has entered upon the verdict in this case be set aside.

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(102)