Executors of Adam v. Robeson, 5 N.C. 392, 1 Mur. 392 (1810)

July 1810 · Supreme Court of North Carolina
5 N.C. 392, 1 Mur. 392
The executors of Robert Adam v. Thomas J. Robeson

The executors of Robert Adam v. Thomas J. Robeson.

I From Dupliit. J

“ In an inquisition of forcible detainer, the proceeding being of a civil nature, the Court will grant a new trial if the Jury find contrary to evidence.”

This cause was brought up to the Superior Court of Law for Cumberland County, by a writ of recordari, directed to two of the justices of said county, commanding1 them to certify tiie proceedings had before them relative to an inquisition of forcible detainer. The cause was removed for trial to the county of Duplin, and at September term, 1807, a trial was had upon the testimony produced by the parties, when the Jury found that the Defendant was not guilty of the forcible detainer complained of by the Plaintiffs. A rule for a new trial was obtained by the Plaintiff’s upon the ground that the verdict was contrary to evidence. It w'as insisted, for the. Defendant, that the rule ought not to be made absolute, although the verdict might be contrary to evidence; because the proceedings in this case were in the nature of criminal proceedings, and the law did not allow the granting of a new trial. The case was sent to this Court upon the rule for a new trial, and all the evidence offered upon the trial in the Court below, was certified to this Court.

The case was argued by Gaston, for the Plaintiffs, and by Williams, of Chatham, for the Defendant.

Ham, Judge,

delivered the opinion of the Court:

After an attentive examination of the evidence offered upon the trial in this case, we are of opinion, that the verdict was not contrary to evidence; and therefore, that the rule for a new trial ought tqv fie discharged. This opinion, would render it unnecessary to say any thing upon the. second point submitted in ibis case, were there any doubt in the'mind of the Court. But as the *393point lias come up, we are willing to express our opinion, that we do not feel bound by any rule of law, to forbid a new trial in a case like the present, did those circumstances exist, for which new trials are commonly granted. It is not so much the form of the proceeding, as the real subject matter of it, which should be attended to. In Norris v. Tyler,* which was an action for a malicious prosecution, and in which there was a verdict for the Defendant, the Court, on a motion for a new trial, said, “ the Defendant had been sufficiently tried once, where the suit was of a criminal nature,” and 'rejected the motion.

It has been decided, that new trials ought not to be granted in penal actions.† Since that time, however, they have been granted in such actions, for particular reasons $ as on account of a mistake or misdirection of the Judge.‡. In the case of King v. Frances,§ which was a qua ivarrcmto information, the Court granted a new trial, saying “ that that of late years had been considered in the nature of a civil proceeding.” Yet Blackalone, in his Commentaries, ǁ tells ns “ that it is properly a criminal prosecution, in order to fine the Defendant for his usurpation, as well as to oust him of his officebut adds, that “ it is considered at present as merely a civil proceeding.” The proceeding in the principal case for a forcible detainer, had for its object a restoration of the party to the possession of the premises, in case of force found | or in case of force not found, to leave the possession where it was. Blackstone says, “ a forcible entry and detainer is an injury of both a civil and criminal nature.” The case before us is of the first kind. The Defendant, if guilty, may be indicted and fined, in which the offence would be considered a criminal one, and a new trial refused. If the finding of force, by the jury of view *394before the magistrates, was to bo followed not only by a restitution of the possession, but also by fine and imprisonment, a new trial ought not to be granted: but as that finding is only to affect the civil rights of the parties, no good reason seems to exist to forbid the Courl to grant new trial.