#### JAMES WEBB & AL. *vs.*ACHILLES DURHAM.

When a *recordari,*according to *the common practice in oar State, is brought)*with a view to have a new trial upon the facts, as it is a favor, in the nature of an extension of the power of- appeal, it must be applied for speedily,, and any delay, after, the earliest period in>the party’s power to apply, must be accounted for.

But when the *recordari*is used as -the foundation for reviewing summary convictions, or other proceedings, before inferior tribunals in a case of false-judgment, it is in the nature of a w.rit of error, and in. faet always lies as, a matter of right.

Where the *recordari*is to bring up the proceedings in a case of forcible entry and detainer, although the plaintiff may have entered no. traverse before the justice, yet he shall be permitted to assign as many errors- as he thinks-proper.

The cases of *Beaiherwood*v. *Moody,*3 Ired. 129, *Brooks*v. *Morgan*5 Ired. 481, and *Parker*v. *Gilreath,*6 Ired. 221, eited and approved.

Appeal from the Superior Court of Law of Rutherford County, at the Spring Term, 1846, his Honor Judge' Pearson, presiding;

In November 1845, the plaintiffs obtained from the-Superior Court of Rutherford a writ of *recordari*to-bring-up a certain proceeding, had at the instance of Durham* before a Justice ©f the-Peace for an alleged forcible entry into a certain tract of land, as- it was stated in the-affidavit, on which the writ was moved for; The affidavit, further stated, that the land belonged to one Baxter in *131fee, who leased the same to the plaintiffs ; who entered peaceably and were quietly possessed of the premises, when they were evicted by order of the Justice of the Peace, who rendered a judgment against them for the eosts of the said proceedings; and it also stated several particulars, in which the plaintiffs were advised the proceedings were erroneous: First, that they were carried on in the name of the State. Secondly, because the jury did not find any forcible entry or detainer. Thirdly, because the jury did not find that Durham had any estate in the land.

The Justice returned thereon proceedings in the follo wing words:

“ NORTH CAROLINA — Rutherford County,

December 31st, 1844.

Achilles Durham *v.*Charles Webb & John Webb. The party of the .■second part has made forcible entry and detainer on a certain tract or parcel of land, and a certain house, known by the name of the McKinney House, •and agreeable to Act of Assembly, we command that the Sheriff of said ■County, or auy lawful officer, summon a jury of good and effective men to attend on the premises and make their report, as In accordance with the same.

(Signed,) M. R. ALEXANDER, J. P.

JOHN BABER, J. P.

Returned," Executed/’ by J. A. Carpenter, Constable. There were thereon these further entries:

*“*In accordance to a summons .to us undersigned jurors to act as directed by ■the laws of the State in case of possession, wherein Archilles Durham is ¡plaintiff, and Charles Webb and John Webb, are defendants, we report as follows, that our judgment is, that the said Durham holds possession of tha premises in dispute, consisting of the Mansion house and its appurtenances ; ■and this is our verdict.” This was signed by twelve persons, and attested by •“ M. R. Alexander, J. P.

Then comes the following:

“In conformity to the within decree, we, the jury, say, that Achilles Durham is entitled to the premises herein alleged, and we put him in full possession of the same this 31st day of December, 1844” — which is also signed by the twelve jurors and by “M. A. Alexander, J. P.”

*132Then there is added as follows:

‘‘Judgment against the defendants in this case for $6 20 for the costs.”

(Signed,) “M. R. ALEXANDER, J. IV»

The Justice stated further, that “ as soon as the jury made their report, the said Webbs, being'present, agreed to give up possession to Durham and pay the costs, and therefore the proceedings were stopped at that point, and no further record made.”

Durham filed a long affidavit, in which he stated his title to the land, and that on the Slst day of December 1844, a person, Avho was his tenant for that year, was leaving the premises, and as he went out, the present plaintiffs intending to get possession, sent some of their goods to the premises, though they did not themselves get into possession ; and that he, Durham, fearing that he would be ousted, applied to the Justices and got the proceedings instituted. He then states, that the defendants abandoned their claim, as stated by the Justice, and brought an ejectment against him. Upon the foregoing facts, the Court, on the motion of Durham, dismissed the writ of *recordari,*because the plaintiffs, Webb, had not tendered a trayerse before the Justice, and because the plaintiffs did not apply for the writ at the first term of the Court in 1844, but delayed until the second term in November 1844. From that decision an appeal was taken to this Court.

*Baxter,*for the plaintiff.

*Guión,*for the defendant.

Ruffin, C. J.

As was mentioned in *Leatherwood*v. *Moody,*3 Ired. 129, and *Brooks v. Morgan,*5 Ired. 481, writs of *certiorari*and *recordari*are most commonly used in this State, as substitutes for appeals, so as thereby to obtain a trial *de novo*upon the merits, which might be had upon an appeel. That is so much the more common

*133purpose to which those writs are applied, that it would •seem as it began to be thought, that such was their only purpose in our law. But in truth, that application of the writ has grown up in recent times, out of the provision with us for re-trials of the facts. When asked for to that end, as it is a favour, in the nature of an extension of the power of appeal, it must be applied for speedily, and any delay, after the earliest period in the party’s power to apply, must be accounted for. But when the *recordari*is used as the foundation for reviewing summary convictions or other proceedings before inferior tribunals in a case of false judgment, it is in the nature of a writ of •error and in fact always lies as a matter of right. *2 chitty’s Gl. Ps. 219.*Mr. Ciiittv, in that part of his work, explains very fully the mode of proceeding on it, whether to reverse the judgment for matter already apparent in the proceedings, or for errors cf the magistrate upon questions of evidence received or rejected, or other like matter ; and there seem to be many regulations, by acts of parliament, on the subject. When, however, it is, as in this case, brought for the sole purpose of reversal for error in the plaint as recorded — for no other is suggested in the affidavit — and that too, in a case in which no appeal is allowed by law, or, if allowed, there can be no retrial on it; there can be no mistake as to its character. It can be regarded in no other light, but as a writ of false judgment; and the plaintiff has a right to assign substantial errors and have the judgment of the Court upon the matter of law. It was for that reason, that the writ was sustained in *Parker*v. *Gilreath,*6 Ire. 221; for Parker, as a garnishee, could have no trial *de novo*in the Superior Court, as his liability depended on the garnishment already given before the Justice of the Peace; yet he was entitled to the judgment of a Superior Court whether in law ho was chargeable on that garnishment. It was erroneous, therefore, to dismiss this *134writ, as having been improvidently issued after *laches*in the .plaintiff. Then, as to the other reason, namely, that the plaintiff took no traverse before the Justice ; it plainly proceeds upon a mistaken view of the writ. For that circumstance, if there had been opportunity to take a traverse and an omission, would not preclude the plaintiffs'from assigning other errors, patent on the record of the conviction. The Court ought therefore, *to*have required the plaintiffs to assign their errors, and upon their, refusal to do so, according to the course of the Court, then the writ might have been dismissed for the want of an assignment. But by this reason, the Court would determine, that the plaintiffs should not assign any errors, though apparent in the plaint, because they had omitted to take a particular defence at a certain juncture. The truth is, however, that there was no finding of any forcible entry or detainer, which the plaintiffs could have traversed.

The jury merely found that “Durham holds possession;” and they did not find that either of the plaintiffs had entered forcibly or held forcibly. Indeed, they could not have so found, according to Durham’s own affidavit; for he states that they were never actually in possession, but that he resorted to this proceeding to prevent them from getting the possession. The whole proceeding was so improper in itself and so informally conducted, that it is obvious upon its face, there ought to have been no judgment against the present plaintiffs for the costs. However, that matter is not before us now, but will arise when errors shall have been assigned and the record of the plaint looked into, with the view to reverse or affirm the judgment. At present we are restricted to the point, whether the writ should have been quashed without allowing the plaintiffs even to assign errors, much less to obtain a judgment of the Court upon them. We think, the order was erroneous ; and it must be reversed, and *135the cause remitted to the Court below, for further proceedings thereon according to law.

Per Curiam. Ordered accordingly.