In an action for the recovery of possession of land, where the defendants filed their affidavit alleging they were unable to give the bond required in ch. 193, sec. 11, Acts of 1869-'70, and counsel certified that the plaintiff was not entitled to recover: Held, to be error in the Judge below to require the defendants to give bond before they would be permitted to defend said action.
( Deal v. Palmer, 68 N.C. 215, cited and approved.)
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 Honor refused to allow the defendant to plead, c., without bond. In this we 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. 215.
Error.
PER CURIAM. Order reversed.