McMillan v. Smith , 2 N.C. 75 ( 1815 )

Cameron, J.

delivered the opinion of the court.

In deciding on the propriety of retaining or dismissing the writs of certiorari obtained by the defendant Smith, a majority of the court exclude from consideration the affidavits of the plaintiff and his agent, which appear to have been improperly filed and sent up with the papers in this cause; in as much as they have been made and sworn to since the cases were transferred to this court by appeal; and regard only the affidavits which were read in the court below.

Whenever a party applies for an extraordinary remedy, to have his cause re-examined in a superior tribunal, he ought to shew some satisfactory reason why he was unable to avail himself of the ordinary remedy by appeal from the judgment of the inferior jurisdiction.

The judgments complained of by the defendant, were taken, according to his own statement, on the first day of the county court; he made no attempt to appeal, nor does he pretend to account for his not having done so—consequently, the writs of certiorari must be dismissed with costs.

Judgment for plaintiff.