delivered the opinion of himself and brethren, and said,

This is a proceeding against the defendant, late clerk *200 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 un-cflj|etj for for t!ie space of three years. The penalty of one thousand dollars attached upon the. defendant for not making his return before the first Johnson 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 fay him will not affect it.

We can see no error in the judgment; it must he af.firmed.

Judgment aeeirmed.