This case came before this court by a former appeal at the October term, 1881,.and the questions presented by the record in that appeal, Avere then considered and decided. *113(See McMillan v. Baker, 85 N. C., 291). It is too plain to admit of serious question, that the Court then held that there was-“error and there must be a new trial ”; not a new trial in respect to part of the case, or to particular aspects of it, but upon the whole merits of the action as it then might appear before the court. The plaintiffs were left to prove their case over by the same or other and additional evidence, and the defendant was likewise left at liberty to make good his defence if he could do so.
The court below ought, therefore, to have proceeded with the trial of the issues of fact arising upon the pleadings, just as if no former trial had taken place, applying the law as expounded and laid down by this Court in its opinion in the case. It might be that the trial of the issues of fact, in view of the decision of' this Court upon the questions of law, and the proofs, would certainly lead to a particular result, but there might be other proofs on the one side or the other, or both; at all events, it was acces-sary to try the issues over, and submit an issue' as to damages, with proper instructions. It was erroneous simply to submit an issue as to damages. Isler v. Koonce, 83 N. C., 55; Meroney v. McIntyre, 82 N. C., 103.
This being an action to recover the possession of land, the-plaintiff, after the jury had been selected, but before it had been impanelled, moved to strike out of the record the defendant’s answer, because no undertaking to secure costs and damages had been given by the defendant before answering the complaint, as required by The Code, §237. The Court allowed this motion. The defendant, however, then asked leave to file a proper undertaking, suggesting that he was well able to answer for the damages, that the case had been'pending for a long time, and that he was taken by surprise. We think the Court ought not to have allowed the motion to strike out of the record the defendant’s-answer, without first giving him an opportunity to give a proper undertalcing to secure costs and damages. Under the' circumstances of this case, he had the right to be allowed such opportunity. The undertaking, required by the statute in such cases, *114is for the benefit of the plaintiff, and it ought to be strictly required unless waived by him; but he may waive it if he sees fit to do so. It is very clear, that the plaintiffs did so in this case; at least, and certainly until they should demand it.
The action was begun on the 3d day of April, 1879. The plaintiffs filed their complaint and the defendant filed his answer without objection; the action was tried in the Superior Court, and there was an appeal to this Court. This Court granted a new trial. In the court below, just at the time the trial of one issue was about to be had, the plaintiffs, for the first time, moved to strike out the answer, upon the ground that an undertaking for costs and damages had not been given. There could scarcely be a stronger case of waiver by-implication. The Court had the power to require the undertaking to be given at so late a period in the progress of the action, upon application of the plaintiffs; but the defendant had the right, after such waiver, to have opportunity to give it, and having given it, as the Court might require, to have his answer remain of record, and have the full benefit of it.
This court has the authority to revise the action of the court below, in respect to the motion and order in question. It did not lie in the discretion of the court to strike the answer from the record, because the waiver of the undertaking on the part of the plaintiffs, created a right in the defendants to give it when required. They may have deemed the defendant abundantly solvent and able to pay costs and damages; or, for reasons satisfactory to them, they may have abstained from insisting on their strict rights. As they did not, by their silence as to the undertaking, they invited or permitted him to proceed in the action with his defence, without it. Having done so, it would be unjust, and a violation of good faith at the least, at their pleasure, to cut him off from his defence. The law will not permit them to do so; he is entitled to give the undertaking under the direction of the court; if he will not or cannot, and in the latter case, cannot obtain leave to defend as a poor person, then the plaintiffs’ motion *115to strike out the answer must be allowed. Ferguson v. McCarter, Taylor’s Term R., 107; Brittain v. Howell, 2 D. & B., 107 ; Russell v. Sanders, 3 Jones, 432.
There is error. The defendant must be allowed to give an undertaking to secure costs and damages, as the court may direct. If he fails to do so, in that case, the court may allow the motion to strike the answer from the record, and proceed according to law. If the undertaking shall be given, in that case, the court rvill pi’oceed in the action according to law. To that end, let this opinion be certified to the Superior Court of the county of Cumberland. , It is so ordered.