Beaner v. Pilley, 5 N.C. 444, 2 Car. L. Rep. 444 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 444, 2 Car. L. Rep. 444

Beaner and Wife v. Pilley and Wife.

The plaintiffs brought an action of ejectment against the defendants to March Term, 1815, of Beaufort County Court. At the same term the defendants employed counsel, who appeared and entered into the common rule, &c. but the defendants did not give bond for costs, as required by act of Assembly, before making defence. For want of such bond, the plaintiff’s counsel struck out from the appearance docket the plea entered for them, and entered up judgment by default final against the casual ejector. A writ of possession issued, under which the plaintiffs were put into possession. At June Term, 1815, the defendant, on an affidavit, stating " that he would have given security for the costs had he known it was necessary, and that he believes he has a good title to the lands in dispute,”—obtained a rule on the plaintiffs to show cause why the judgment should not be set aside a writ of restitution awarded, and the defendants be permitted to plead on giving bond as required by act of Assembly. At September Term, 1815, the rule being made absolute, the plaintiff appealed to the Superior Court, from whence the case is transferred to this Court.

Cameron, J:

—By the application of a positive statute the defendants have been turned out of possession of the land in question, without having the judgment of a Court of Justice on the merits of their title. Such a course is at all times to be avoided, when practicable, consistently with the laws of the land and the powers of the Courts. When the suit of a plaintiff in ejectment is dismissed by the application of the same statute, the costs which he incurs is all the evil he is subjected to. He may recommence his suit and be heard on as advantageous grounds as if his first suit had progressed to hearing on the merits. The defendant in ejectment, who is turned out of possession without a trial, if compelled to become plaintiff to assert his title, loses many advantages which he possessed as defendant in possession.

New trials instituted and established as a mean of attaining the ends of justice, were not formerly countenanced in the action of ejectment, because the injured party might bring a new ejectment. But as the Courts became more liberal, they granted new trials in ejectment where the party applying would suffer by a change of possession; as where the plaintiff has obtained a verdict, it makes a great difference to the defendant whether he has a new trial or is forced to become plaintiff in a new ejectment.

“ We should therefore,” said Lord Mansfield in the case of Clymer v. Littler, 1 Bla. Rep. 348. “ rather lean to new trials on behalf of defendants, in case of ejectments, especially on the footing of surprise.” Runnington on Ejectment, 398.

We are all of opinion, that the application of the defendant rests on higher grounds than if the cause had been tried, a verdict found for the plaintiffs, and a motion made for a new trial on the part of the defendant. Audi alteram partem, is a maxim in the law, founded in justice and highly to be respected. The order of the County Court, making the defendant’s rule on the plaintiff was correct.—Judgment affirmed.