State v. . Butler

"The jurors for the State upon their oaths present, that Isham Parham, late of the county of Granville, in the District of Hillsborough aforesaid, on the fifteenth day of January, in the year of our Lord one thousand seven hundred and ninety-nine, was possessed of a certain messuage with the appurtenances, situate and being in the county of Granville, in the District aforesaid, for a certain term then unexpired, and being so possessed thereof, one John Butler, late of the county of Granville, in the District aforesaid, laborer, afterwards, viz., on the fifteenth day of January, in the year aforesaid, into the said messuage with the appurtenances aforesaid, the freehold of one Isaac Hunter, in the county of Granville, in the district aforesaid, with force and arms and with strong hand, unlawfully did enter and the said Isham Parham from the peaceable possession of the said messuage with the appurtenances aforesaid, then and there, with force and arms and with strong hand, unlawfully did expel and put out the said Isham Parham from the possession thereof so as aforesaid, with force and arms and with strong hand, being unlawfully expelled and put out, the said John Butler him the said Isham Parham, from the aforesaid fifteenth day of (502) January, in the year aforesaid until the day of the taking of this inquisition, from the possession of the said messuage with the appurtenances aforesaid, with force and arms and with strong hand, unlawfully and injuriously, then and there, did keep out, and still doth keep out, to the great damage," etc. Being found guilty by the jury, in Hillsborough Superior Court, a motion was made by the Solicitor-General that a writ of restitution should be awarded; upon which the cause was sent up to this Court to obtain a decision on that point. I. It is a rule that the tenement in which the force is charged to have been committed must be described with certainty, in order that the defendant may be apprised of the manner in which to make his defense, and that the sheriff may know exactly the possession to which the party praying the writ is to be restored. The words of the indictment are, "that Parham was possessed of a certain messuage with the *Page 412 appurtenances, situate and being in the county of Granville aforesaid, in the district aforesaid." This description is liable to the objection of vagueness and uncertainty, as much so as many of those instances which the books furnish, as having been held fatal to indictment. 1 Hawk., Pl. B. 1, ch. 64, sec. 37, where the cases are collected, and 4 Com. Dig., 210, D. 3. II. The estate which the party expelled had in the land ought to be shown in a particular manner, to entitle him to the benefit of this writ, under any one of the statutes. The indictment states that Parham "was possessed of a certain term then unexpired." But it ought specially (503) to have defined the term, whether for life or years, that it might appear to the Court that the term is still unexpired. If the indictment had been on the 8 Hen., 6, it must have shown that the party put out of possession was seized of a freehold, otherwise he could not be entitled to restitution under that statute. If the indictment be founded on sec. 21, 1 Car., XV, it ought to show that he was possessed of a certain term for years; for neither tenant for life nor tenant at will are entitled to restitution under that statute. 1 Haw., Pl. B. 1, ch. 64, sec. 38; 4 Com., 210; 1 Salk., 260; 1 Ventris, 306. III. A writ of restitution cannot properly be issued to the party expelled unless it appears to the Court that his right to the possession continued at the time the indictment was found. Here it is stated that he was possessed of a term unexpired on the fifteenth of January, 1799, the time of the expulsion; but it cannot be inferred that the term remained unexpired when the bill was found. On the contrary, it appears by a copy of the lease filed by the prosecutor that the term ended the third of March, 1799; whereas the indictment was found at April Term, 1800. A writ of restitution cannot, then, be awarded to Parham — for he has no right to the possession. Can it be awarded to Hunter? I apprehend not. (I) Because the indictment does not show that Hunter was in actual possession. (II) Because it does not appear that Parham held under Hunter. It is true the indictment calls it the freehold of Hunter, which it might be, and yet Parham be a disseizor. It should have been clearly stated that Parham held under a lease from Hunter. IV. The Superior Courts cannot entertain jurisdiction upon all, or any of the statutes, relating to forcible entries. There is no act of Assembly conferring that jurisdiction in express terms, nor can any other authority be shown for it. Besides, the writ of restitution, as used in England, is not given by the common law, but by the several statutes enacted for the purpose. Those statutes ought to be strictly pursued, and there is not one of them that will warrant issuing the writ upon this *Page 413 indictment. And as the writ is not at common law, it cannot be (504) issued on this record. 1 Plow., 206-7. V. By the Constitution of this State, no man can be deprived of his rights or property but by the verdict of a jury, or his own admission or consent. Upon this indictment, neither the right of property nor of possession were put in issue; the force only has been decided upon. The defendant ought not, therefore, to be molested in his property or possession. Upon these reasons, it is apprehended that the motion will not be granted. Nor was it necessary to have been more particular in stating the quantity of estate the defendant had in the land. Term is certain enough; it signifies, in legal acceptation, a term for years. An estate for years is frequently called a term, terminus. 2 Bl. Com., 143; Cok. Litt., 45, b; and the indictment must be understood that, at the time it speaks, the term was then unexpired, for it states that the defendant "still doth keep him out of possession." It follows that the defendant appears upon the face of the indictment to be a tenant for years whose term is unexpired; and such a one is entitled to restitution by the 21 Jac., ch. 15. This is not an indictment upon the 8 Hen., 6, and therefore no seizin is necessary; it is upon the first mentioned statute, and the defendant being within the benefit of that, it is (505) not his term travel out of the indictment to ascertain whether his term still continues. As to jurisdiction, I take it to be a settled rule that the Superior Courts have a general jurisdiction upon all criminal matters, whether arising at common law or by statute, unless taken away by express negative words. 2 Haw., B. 2, ch. 3, sec. 6. The act establishing these Courts invests them with a general criminal jurisdiction (Iredell, 297), though partial limitations have been since made. The jurisdiction in this case, therefore, cannot be ousted, unless it be done by a law for that purpose; but none such exists. *Page 414 Lastly. If the constitutional objection be valid, then all the statutes relative to forcible entries are at once repealed; yet they have been used ever since the Revolution, and generally considered to be part of the law. Iredell, 353. But the proceeding in those cases does not affect the right of property or possession. If the defendant has either, he may resort to the legal mode of establishing his claim, to that mode directed by the bill of rights, secs. 1, 12, 14. It is such conduct as the defendant's that has a tendency to violate the instrument referred to; for he is endeavoring to establish a possession not sanctioned by law, and without resorting to the trial by jury. It is agreed by the counsel in this case that the only question now to be decided is whether a writ of restitution ought to issue or not. It appears that the lease, under which Parham claims the land, has expired. He therefore cannot be put in possession by this writ, and no other person can have the benefit of it. For this reason, therefore, I think it ought not to issue.