FROM WILKES. In the vacation following the defendant applied to MARTIN, J., and made an affidavit of merits — stating further that there were but eight days between the service of the process and the return day; that during the whole period between the issuing of the process and the return day the defendant was confined in prison in Virginia, and had no opportunity *Page 199 of defending the action. Upon the acts thus disclosed and prayer of defendant, his Honor directed a writ of error for error in fact, and also a writ of supersedeas, to issue.
On the last circuit the cause came on before MARTIN, J., when "the judgment heretofore entered in the cause was reversed for error in fact, and that the same be reinstated on the trial docket. It is (315) further ordered by the Court that a writ of restitution issue, commanding, etc."
From this judgment the defendant in error appealed. It may be admitted that a writ of error is not the proper remedy in this case, because Bledsoe has not made himself a party to the suit by coming into Court and confessing lease, entry and ouster, and being admitted to plead. No person can have a writ of error, but a party or privy to the suit. Run. on Eject., 421. Yet he discloses such facts in his affidavit as entitle him to relief. (316)
If Bledsoe was not a party to the suit the only parties to it were the plaintiff and the fictitious casual ejector. Thus situated, if judgment was entered against the casual ejector, and a writ of habere faciaspossessionem was issued against him, every person in possession claiming title to the land, and who might have had a good title to it, would be turned out of possession. This would be iniquitous and oppressive, and a gross violation of the principle that no man shall be deprived of his property without a hearing or an opportunity of making his defense. Hence it is in order that the fictions in this section shall do no wrong, that the Courts will not permit judgment to be entered against the casual ejector unless it is made to appear that notice has been given to the tenant in possession, and a declaration served on him, whereby he may become a defendant in the suit if he thinks proper. The affidavit setting forth the facts should be positive that the person on whom the notice has been served was the tenant in possession, or acknowledged himself to be so. (Run. on Eject., 158.) Has this been done in the present case? Or if it is not, ought a judgment by default to have been entered against the casual ejector? Or ought a habere facias possessionem to have been entered against the casual ejector? Or ought a habere facias possessionem to have issued, and thereby dispossessed the tenant in possession?
Sec. 14 of the act of 1777, Rev., ch. 115, directs that all writs and other process shall be executed at least ten days before the beginning of any term. The declaration in this case, as appears from the record sent here, was served eight days before the beginning of the Court to *Page 200 which it was returnable. And if it was served in sufficient time the particular manner of executing it does not appear. It may have been served on the tenant, or on his wife, or on some other of the family, or it (317) may have been fixed to the door of the house. In the latter case it would have been proper to procure a rule against the tenant to show cause why such service should not be sufficient before judgment should be entered against the casual ejector. Sprightly v. Dunch, 2 Bar., 1116. I therefore think that there was not sufficient service of the declaration on Bledsoe.
I have taken it thus far for granted that Bledsoe was the tenant in possession. But did that fact appear judicially to the Court, when judgment was entered against the casual ejector? The sheriff's return, to make the most of it, only proves that notice was served on Bledsoe, but not that Bledsoe was the tenant in possession. Suppose that A. B., and not Bledsoe, was the tenant in possession and had a good title to the land, and the plaintiff and Bledsoe had fraudulently combined to dispossess him of it, their object might be effected by a proceeding like the present.
Although the affidavit of Bledsoe cannot be received to contradict the sheriff's return, it may be received to influence the discretion of the Court in setting aside the judgment against the casual ejector. Indeed, it does not appear that there is a contradiction between them. The notice might have been served on Bledsoe's wife, or left at his house, and at the same time Bledsoe might have been in jail in Virginia. He swears to that fact, and thereby furnishes an irresistible reason why the judgment should be set aside. I think the judgment of the Superior Court, which placed the suit upon the trial docket and ordered restitution to be made, was correct, and ought to be affirmed.
PER CURIAM. Affirmed.
Cited: Judge v. Houston, 34 N.C. 115.
(318)