Jones v. . Fortune and Another

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.