Adam v. . Robeson , 5 N.C. 392 ( 1810 )

From Duplin. After an attentive examination of the evidence offered upon the trial in this case, we are of opinion that the verdict was not contrary to evidence; and, therefore, that the rule for a new trial ought to be discharged. This opinion would render it unnecessary to say anything upon the second point submitted in this case, were there any doubt in the mind of the Court. But as the point has come up, we are willing (393) to express our opinion, that we do not feel bound by any rule of law to forbid a new trial in a case like the present, did those circumstances exist for which new trials are commonly granted. It is not so much the form of the proceeding as the real subject-matter of it which should be attended to. In Norris v. Tyler, Cow., 37, which was an action for a malicious prosecution, and in which there was a verdict for the defendant, the Court, on a motion for a new trial, said, "the defendant had been sufficiently tried once, where the suit was of a criminal nature," and rejected the motion.

It has been decided that new trials ought not to be granted in penal actions. 1 Wills., 17; 3 id., 59. Since that time, however, they have been granted in such actions, for particular reasons, as on account of a mistake or misdirection of the judge. 4 Term, 753; 5 id., 19. In King v. Frances, 2 Term, 484, which was a quo warranto information, the Court granted a new trial, saying, "that that of late years had been considered in the nature of a civil proceeding." Yet 4 Bl. Com., 312, tells us "that it is properly a criminal prosecution, in order to fine the defendant for his usurpation, as well as to oust him of his office," but adds that "it is considered at present as merely a civil proceeding." The proceeding in the principal case for a forcible detainer had for its object a restoration of the party to the possession of the premises, in case of force found, or, in case of force not found, to leave the possession where it was. 3 Bl. Com., 179, says, "a forcible entry and detainer is an injury of both a civil and criminal nature." The case before us is of the first kind. The defendant, if guilty, may be indicted and fined, in which the offense would be considered a criminal one, and a new trial refused. If the finding of force, by the jury of view before the magistrates, was to be followed not only by a restitution of the possession, but (394) also by fine and imprisonment, a new trial ought not to be granted; but as that finding is only to affect the civil rights of the parties, no good reason seems to exist to forbid the court to grant a new trial.