The replication, or plea, of the plaintiff, as it is indifferently called in the transcript, seeks to put in issue the validity of the appointment to the office of Clerk of the Superior Court, of Will. J. Critcher, who certifies to the signature and oath of the defendant to his answer. The title to an office cannot be determined in this collateral way. It must be done in some direct proceeding, to which Critcher is a party, as by quo warranto. Williams v. Somers, 1 D. & B. 61.

His Honor very properly treated the answer as duly certified by a Clerk de facto, and was well warranted in passing ■over the “replication or plea” as of no effect or legal signifi- *632 canee. We concur in his ruling upon the motion to dissolve the injunction, for the answer is responsive to the allegations of the complaint, and fully denies all of the allegations by which the plaintiff attempts to set up ground for relief. Indeed, we are inclined to the opinion that the injunction was imprudently granted, because the complaint does not make a ease:

1. The memorandum in writing of the agreement, describes the land as “ a certain tract of land where he now resides.” We admit that this vagueness may be aided by an averment in the complaint. The averment is that the tract of land on which he resided was a tract of one hundred acres; so the description is not made to fit the subject-matter of the contract set out in the complaint, to-wit, Three hundred and twenty-eight acres, of which two hundred and twenty-eight is averred to be vacant land.

2. The allegations make a case for the rescission of the contract, on the ground of fraud: but the relief asked for is a specific- performance., and that not of the contract set out, but of a contract which the Courtis asked to make for the parties,by letting the plaintiff have the tract of one hundred acres on which, he resides, at a fair valuation, and putting the two hundred and twenty-eight acres aside, as land “ the title to which was outstanding in the State of North Carolina.”

There is no precedent for this relief in any judicial proceeding: a vendee is never required to take a defective title with warranty, although a vendor is sometimes allowed to have a specific performance upon making compensation for a defective title to some small part, which does not materially affect the value of the subject matter of the contract.

In this case the vendee asks that the vendor may be compelled to make compensation for more than two thirds of the land.

The ruling of his Honor is affirmed.

PER CüRIAM. Judgment affirmed.