GRANT v. NEWSOM. dict was such as not to authorize the court to proceed to judgment thereon. The counsel of the defendant in this court having entered a remitter for the interest on the $45 found as the value of the horse, it is not necessary that we should consider the exception to the verdict on that account. There is no error. Judgment of the court below affirmed. No error. Affirmed. JAMES W. GRANT v. JAMES W. NEWSOM. Practice-Controversy without action. The Court will not hear a controversy without action submitted under C. C. P., § 315; in the absence of an affidavit that the controversy is real, and the proceeding in good faith to determine the rights of the parties. (McCarson v. Richardson, 1 Dev. & Bat., 561; Aycock v. Harrison, 65 N. C., 8; Hervey v. Edmunds, 68 N. C., 243, cited and approved.) CONTROVERSY without action under C. C. P., § 315, heard at Spring Term, 1879, of NORTHAMPTON Superior Court, before Eure, J. The plaintiffs are James W. Grant, administrator of Lewis B. Hill, deceased, and Matilda J. Hill, widow; and the defendants are James W. Newsom, sheriff, and W. H. Hughes, executor of W. M. Crocker, deceased. At fall term, 1869, Hughes, as executor aforesaid, obtained judgment against Lewis B. Hill for the sum of $1,025.83, in an action to recover a debt contracted prior to the first of January, 1865, and executions were regularly issued thereon. On the 14th of November, 1878, Hill died intestate, and the plaintiff qualified as his administrator on the 2nd of December following, and on the 30th of December, an execution issued GRANT v. NEWSOM. on said judgment tested as of fall term, 1878, of said court, (which was held on the 30th of September) and went into the hands of defendant sheriff, returnable to spring term, 1879. About the 2nd of December, 1878, the plaintiff, as administrator aforesaid, took possession of all the personal property belonging to the estate of his intestate, and advertised its sale on the 30th of the month. In the meantime (Dec. 11th, 1878,) sundry articles of personal property were allotted to the widow of the intestate, (which are itemized in the case agreed) amounting in value to $214.06; and the whole allowance being estimated at $400.00 a return of a deficiency of $185.94 was made. The defendant sheriff, by direction of said. Hughes and by virtue of said execution on the 30th of said month, levied upon and sold all the personal property belonging to the estate of Lewis B. Hill, including that portion which had been allotted to the widow aforesaid, and realized the sum of $483.25. There were other debts owing by said intestate than the one due to Hughes. If the court is of opinion that the seizure and sale by the sheriff were authorized by law, then judgment of nonsuit shall be entered against the plaintiffs; but if not, then judgment shall be entered for the widow for the return of the above mentioned articles and $185.94, or $400.00 and interest from the 30th of December, 1878, in lieu thereof; and also judgment for the administrator for the sum of $83.25, with interest. The court being of opinion with plaintiffs gave judgment accordingly, and the defendant Hughes appealed. Mr. T. W. Mason, for plaintiff. SMITH, C. J. If the case were properly before us we should LANE v. MORTON. find little difficulty in determining the questions intended to be presented. The cases cited for the appellant, and the provisions of the statutes referred to, leave little room to doubt as to any of them. McCarson v. Richardson, 1 Dev. & Bat., 561; Aycock v. Harrison, 65 N. C., 8; Acts 1870-'71, ch. 43, § 7; C. C. P., § 261. But we do not undertake to decide them, for the reason that the cause was not properly instituted in the superior court, and consequently is not properly before us on this appeal. The case agreed between the parties as "containing the facts upon which the controversy depends," is submitted without action under C. C. P., § 315, and as the proceeding is outside the common law, to give jurisdiction the requirements of the statute must be strictly observed. But this is not the case. There is no accompanying affidavit, and the Code declares that "it must appear by affidavit that the controversy is real, and the proceeding in good faith, to determine the rights of the parties." When this is done, the judge shall thereupon hear and determine the case, and render judgment thereon, as if an action were depending. The affidavit is plainly an indispensable prerequisite to the exercise of jurisdiction in such a case; and so it is declared by this court in Hervey v. Edmunds, 68 N. €., 243. The appeal must therefore be dismissed. PER CURIAM. Appeal dismissed. R. H. LANE v. D. W. MORTON. Practice-Writ of Restitution-Non-Suit Whenever a defendant is wrongfully dispossessed of his land by legal process, he is entitled to a writ of restitution and an inquisition of damages in that action, of which the plaintiff is not permitted to deprive him by taking a non-suit. (Dulin v. Howard, 66 N. C., 433; Perry v. Tupper, 70 N. C., 538, cited and approved.) LANE v. MORTON. CIVIL ACTION tried at Spring Term, 1879, of PAMLICO Superior Court, before Avery, J. This action was brought before a justice of the peace under the landlord and tenant act, to recover possession of land and judgment rendered for plaintiff. The case was taken to the superior court by writ of recordari, and at spring term, 1877, before Moore, J., the defendant suggested that as the title to the land was in controversy, the justice of the peace had no jurisdiction, which question of jurisdiction. had been raised before the justice verbally, the defendant having no counsel present and the justice refusing to examine any witnesses touching the matter. And under the suggestion of the court to the counsel of defendant the case. was remanded to the justice's court to enable defendant to answer in writing. The justice took no action in the premises, and thereupon the defendant obtained a mandamus compelling him to proceed and try the case. In obedience thereto he notified the parties to appear before him, when the defendant asked leave to file an answer in writing raising the question of jurisdiction, which was refused and defendant appealed to fall term, 1877, when the motion for leave to file the answer aforesaid was allowed by Eure, J., and the plaintiff appealed. (See same case, 78 N. C., 7.) And at spring term, 1879, before His Honor the plaintiff stated that he would take a nonsuit, which was objected to by defendant upon the ground that he was entitled to an order for a writ of restitution and assessment of damages by a jury for the rents and profits of the land. In reply, the plaintiff contended that the defendant asked for no affirmative relief in his answer, and that he, plaintiff, was not prepared to go into an inquiry of damages. Thereupon the court ordered a writ to issue to place defendant in possession of the land described in the pleadings, and that issues be framed for trial at the next term of the court as to LANE v. MORTON. the amount of damages sustained by defendant for rents and profits. From this judgment the plaintiff appealed. No counsel in this court for plaintiff. Mr. W. E. Clarke, for defendant. SMITH, C. J. When the case was before us at January term, 1878, (78 N. C., 7,) it was decided that the defendant might with consent of the court, file his answer in the superior court, which he had offered to do, and was not allowed to do while it was pending before the justice. In accordance with this decision the answer was put in in the superior court, and thereupon the plaintiff proposed to submit to a non-suit. This was resisted by the defendant, who moved for a writ of restitution of the lands of which he had been dispossessed by a writ of possession before granted the plaintiff, and that a jury might be impaneled to assess his damages by reason thereof. The court refused to allow the non-suit, and adjudged that a writ of restitution issue, and that issues be framed for trial at the next term as to the damages sustained by the defendant for rents and profits. From this judgment the plaintiff appeals. We see no error in the record. The defendant had been wrongfully deprived of the possession of his lands by the action of the justice in an early stage of the proceedings, and when they were depending before him, and it was the right of the defendant to have, and the duty of the court, before ending the action, to restore that possession and to allow compensation to him for the injury done. For this purpose the cause was properly retained, and, to meet the plaintiff's suggestion that he was unprepared to try the question of damages, an issue ordered to be made up to be tried before a jury at next term. The ruling is supported by authority. |