Supreme Court of North Carolina, 1873

Jones v. . Fortune and Another

Supreme Court of North Carolina · Decided June 5, 1873 · Reade

69 N.C. 322

Counsel

L. W. Barringer , for appellants, submitted: 1. His Honor was in error in refusing the motion of the defendant to be allowed to defend in ejectment in forma pauperis without bond. His ruling is contrary to the statute provided for such cases. Acts 1869-'70, ch. 193, proviso of sec. 4; Deal v. Palmer , 68 N.C. 215 . 2. The requirement of the statute have been strictly complied with. The certificate of counsel and the affidavit of the defendants were duly made. 3. His Honor made an "order involving a matter of law" contrary to the statute above cited, hence an appeal lies. It is not a matter of descretion. C. C. P. sec. 299. Fuller Ashe , contra.

Opinion of the Court

Reade, J.

The Act 1869-'70, ch. 193 requires defendant in “suits for the recovery of real property or the possession thereof,” to give bond for $200 with surety to answer for costs and damages, &c., before he shall be permitted to plead, answer or demur. But there is a proviso in sec. 4 of said Act that if an attorney will certify that plaintiff is not entitled to recover, and the defendant- will- swear that he is unable to give security, then the defendant may plead, &c., without bond.

In this case there was the necessary certificate of counsel and affidavit of defendant, but still his Plonor refused to allow the defendant to plead, &c., without bond. In this we *324 think there was error. When the necessary certificate and oath are made, the language of the Act is “no defendant shall be required to give said bond,” &c. Deal v. Palmer, 68 N. C. Rep. 215.

Error.

Per Curiam. Order reversed.

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