State v. . Yarborough

Settle, J. The distribution of judicial powers, by Article IY of the Constitution, is a virtual repeal cf all laws giving jurisdiction to Justices of the Peace in' cases of forcible entry and detainer, except for the purpose of binding trespassers over to the Superior Oonrt to answer a criminal charge. Perry v. Tupper, at this term. We have then an indictment, at common law, for a forcible entry, made in 1873, and the de-fence relied upon is a certain proceeding had before a Justice of the Peace, under the statute of forcible entry and detainer. Rev. Code, ch. 4-9, which had been repealed in 1868 by the Constitution. A Justice of the Peace has now no jurisdiction where the title to real estate shall be in controversy. But he may have jurisuiction where the title does not come in question, as in the case where a tenant holds over after the expiration of his term; for there, by reason of the privity of estate, the tenant is estopped to deny the title of the landlord ; and before he can take advantage of a defect in the landlord’s title, the premises must, be restored to the landlord. Creedle v. Gibbs, 65 N. C. 192. But forcible entry is an offence, indictable at common law, without regard to any statute, English or American. No one has a right, at common law, to enforce a claim, however just, by the commission of a breach of the public order and tranquility. Bishop’s Crim. Law, sec. 464. Upon the argument we were referred by the defendant’s counsel to the cases of State v. Hanks, 66 N. C. 613, and State v. Ellen, 68 N. C. 282, where the defendants were held to be not guilty, because they entered under a bona fide claim of title; but it will be observed that they were indicted under the act of 1866, ch. 60, (Bat. Rev. ch. 32, sec. 116) which so *254 far from diminishing the class of indictable trespasses, has greatly enlarged it, and subjected to criminal prosecution were casual trespassers, or “ interlopers,” to use the expressive term of Justice RoydeN in State v. Hanks, who have been forbidden to enter on the premises of another. It is true no clause of the act declares that “ if any person not being the present owner or bona fide claimant of such premises shall wilfully and unlawfully enter thereou, and carry off or be engaged in the act of carry off any wood or other kind of property whatsoever, growing or being thereon, the same being the property of the owner of the premises, or under his control, keeping or care, such person shall, if the act be done with felonious intent, be deemed guilty of larceny, and punished as for that offence. And if not done with such intent, he shall be deemed guilty of a misdemeanor. This act is so badly worded as scarcely to be intelligible, and the saving in favor of bona fide claimants, is only found in in the clause which imposes the pains and penalties of larceny upon certain acts of trespass. This act cannot be tortured to mean that where four men come upon premises, in the actual possession of another, without color of authority, (for the proceedings before the Justice of the Peace, under which the defendants justify, are an absolute nullity for the purposes of protection,) and eject him and his family from the house they are occupying, and carry his effects into the woods, they shall not be indicted. It cannot be that the Legislature intended that every bona fide claimant of land should take the redress of his real or supposed grievances into his own hands. The judgment of the Superior Court is reversed. Let this be certified to the end that the Superior Court may proceed to judgment upon the special verdict. Peb. Cueiam. Judgment reversed.