
    Columbia,
    
      April Term, 1816.
    The State vs. John Trull.
    
    Thejudge may appoint a clerk, pro tempoie, Sons!
    Indictment for Larceny.
    This bill was found by the grand jury during the present; term;) and a motion was submitted to set as^de tlle finding, on the ground, that the grand jury had not been duly impannelled and sworn. ,The facts on which this motion was made were as follows. The former clerk of the court had resigned,-and the vacancy had been filled. On the first day of the term, the presiding judge appointed a clerk of the court of common pleas and sessions, under the act of 1779. And the only question was, whether under that act, the court had the power to appoint a clerk of sessions as well as common pleas.
    His honor refused the motion, and supported the legality of the appointment; at the same time recommended that the question should be submitted to the Constitutional Court, as on the decision would depend the legality of the .grand and petit jurors drawn for the next term. The appeal is now submitted, on the same grounds taken in the court below.
   Colcock, J.

The duties of clerk of Common Fleas and Sessions having been invariably performed by one and the same person in all parts of the state, except Charleston ; and even there for many past. I conceive that the judge was authorised by the act of the 21st of December, 1799, to make the appointment. For although the clause speaks of the clerks of the courts of Common Pleas, it unquestionably uses that language to distinguish them from the county courts just then abolished. But I am inclined to think that in cases of exigency, a judge may appoint pro tempore without any act of the Legislature. I am against the motion..

Justices Bay and Gantt concurred.  