Bliss v. Winston

COLLIER, C. J. — We will enquire first. Is the complaint defective for the causes indicated in the motion to quash ? Second. Was the declaration of Payne, as to his possession, admissible evidence ? Third. Did the justice of the peace, mistake the law in his charge to the jury ? First. The seventh section of the act in regard to forcible entry and detainer, (Aikin’s Digest 203,) provides that “ when complaint to any justice of the peace, of the proper county, shall [347] be made in writing, and signed by the party aggrieved, his agent or attorney, specifying the lands, tenements, or other possession, so forcibly entered upon and detained, or forcibly, or unlawfully detained, by whom and when done, and the estate therein, it shall be the duty of the said justice to issue a precept under his hand and seal, directed to the sheriff of the said county, commanding him, &c ” Thus, we discover that it is not necessary for the complaint to state the precise time when the plaintiff was possessed — it is enough for him to allege, when he was forcibly entered upon, or when the defendant forcibly, or unlawfully detained from him, the possession. So much of the complaint then, as discloses the period during which the plaintiff was in possession, may be regarded as surplusage. The question is, whether it is competent for the plaintiff to state, in different parts of his complaint, the forcible entry to have taken place on two several days. We can conceive of no objection to this. In declarations it is allowable, and very common in practice, to state distinct causes of action in distinct counts; or to set out the same cause of action differently, so as to meet the proof which the plaintiff expects to adduce. The same course of pleading is allowed in criminal proceedings, and upon principles of analogy, we think it defensible in the present case. Second. It may be regarded as a general principle in the law of evidence, that every fact material to be shown, ought to be proved by the testimony of witnesses sworn to speak the truth ; and the reason of the rule is, because evidence ought to be given under the sanction of an oath, and that the person who is to be affected by the evidence, may have an opportunity of interrogating the witness as to his means of knowledge, and concerning all the particulars of the fact. (Phillip’s Evi. 173.) This principle would exclude hearsay evidence of a fact; yet, it is not of universal application, and under some circumstances, or in some excepted cases, this grade of evidence is admissible. The exceptions usually rest upon the necessity of the case, of because such evidence is quite as satisfactory, and infallible, as any other, or bedause it is the declaration of a person against [348] his own interest, or because it is the declaration of a party, and constitutes a part of the res gestae. The elementary writers upon evidence, consider it a well established exception to the general rule, that the declarations of a deceased occupier of land, that he held as the tenant of another are admissible to prove the seizin of that other (Phillip’s on Ev. 182 ; 1 Starkie’s Ev. 70.) And Starkie adds; i£ such a declaration was, in some degree, against his interest, since it would have been evidence against him, by the landlord, in an action for use and occupation.” In Peaceable ex dam Wade v. Watson (4 Taunt. Rep. 16) thé precise question arose; whereupon Mansfield, C. J. remarked “ possession is prima facie evidence of seizin in fee simple : the declarations of the possessor, that he is tenant to another, makes most strongly therefore, against his own interest, and consequently is admissible.” And in Doe ex dem Human v. Petteet (5 Barnwell Ald. Rep. 223,) the question was, whether the declarations of a deceased tenant, were admissible to show, that she had not occupied the premises adversely, for more than twenty years, so as to rebut the statute of limitations. Jlbbott, C. J. said all questions of evidence must be considered with reference to the particular circumstances under which itis offered; that, in that case, the declarations of the tenant, were not used to show the quantum of her estate, but only to explain the nature of her possession. See Davis v. Pierce and others, 2 Term Reports 54. The point was more fully examined in Williams v. Ensign, 4 Conn. Rep. 456, That was an action of trespass quare clausum fregit, in which the title was in question, and the court decided , that the declaration of a person in the actual occupation of the land, made at the time of such occupation, that he held the land under one from whom the defendant derived title, and that he was to deliver him a part of the produce, were held to be admissible in evidence to repel a claim of title in the plaintiff, by adverse possession. The court cite some of the leading English cases on the point, and place their opinion upon the ground that the declaration was part of the res gestae ; cautiously abstaining from the citation of cases in which the declarations [349] were against the interest of the person making them, or where the party to be affected by the testimony, claimed title under the person who made the declarations. See also, Jackson ex dem, Young et al. v. Vredenbergh [1 Johns. Rep 159,) Nichols v. Hotchkiss, 2 Day’s Rep. 121.] In the case at bar, Payne must have made the declaration (if at all) supposed by the question, during the period of his occupancy; for he had not relinquished the possession up to the time of his death. The question then, was admissible upon authority, whether it be considered as calculated to elicit a declaration against the interest of the tenant when made, or as constituting a pare, and explanatory of the res gestae. — What effect should be given to such evidence we do not undertake to decide; but merely determine, that it is competent to show under whom Payne held the possession. Third. In describing a contract, time should be stated with precision, and the proof must correspond with the allegation. But time, in general, is considered as forming no material part of the issue, so that one time may be alleged and another proved. The pleader, therefore, assigns any time he pleases to a given fact. So indictments, though it is necessary to state a certain day when the offence was committed, yet, the State is not held in its proof, to the day laid, but may show the accused to have committed the act, at any time before the finding oí the indictment. In the case before us, it is true that the statute requires, that the complaint should show when the forcible entry was made ; yet, it does not direct that the plaintiff shall prove it to have been made on the day alleged; and by analogy we think it competent to show it to have taken place at any time before the complaint was exhibited. On the second point, the justice of the peace erred; and bis judgment should have been reversed by the circuit court, and the case sent bach for further proceedings. But that court merely reversed the judgment. For this error the judgment of the circuit court is reversed, and the case remanded to that court, that 3 procedendo may be thence awarded to the justice of the peace.