Cunningham v. Green

GOLDTIIWAITE, J. 1. A justice of the peace has the same power to supply the loss of any paper relating to a cause pending before him, as is possessed by other Courts. In Dozier v. Joyce, 8 Porter, 303; this power is said to be inherent in all Courts, and it results from the necessity, that Courts shall proceed unimpeded by accident or design, to the final disposition of all suits, on their merits. We will presume the justice of the peace was satisfied that the complaint filed at the trial, did not materially differ from the original; which he states to have been mislaid. 2. It is insisted, however, that this complaint is insufficient in law, because it seeks to recover a messuage, with the appurtenances, known as the south half of section twenty, &c.— We" apprehend this objection savours of much subtlety, for however it may be true, that land cannot pass as appurtenant to land, it is very certain that a messuage may be known by one name as well as another, and therefore, we consider the description of the premises sought to be l'ecovered, as amply sufficient. The judgment drops the term messuage, and detei--mines that the plaintiff shall recover possession of the land by its other description; but in so doing, does not, as supposed by the defendant, depai’t from the complaint. 3. The complaint is said to be also defective, in not alleging positively and directly, that the plaintiff was in possession of the premises sought to be recovered. This objection is hot sustained by the complaint, because, in addition to the allegation, that the plaintiff was seized in fee, it is also asserted, that the defendant entered with force and arms, and unlawfully put out and disseized the plaintiff from the peaceable possession of the lands described. This we consider as a positive averment, [130] that the defendant was in possession of the lands described, at the time of the unlawful entry. 4. The principal question, and the only one perhaps, on which much reliance has been placed, is that raised by the exclusion of the evidence offered before the jury. It sometimes happens, that the primary Courts are much embarrassed by the production of evidence, which seems to them as introducing a question of title, when in reality, the only object and effect of the evidence is, to show the manner and extent of the possession. In this case, it is said, the evidence offered was introduced for the purpose of controverting facts alleged by the plaintiff; and in order to justify the taking and continuing in possession of some portion of the half section of which, the plaintiff was not in the actual possession at the time of the entry. The allegation of seizen in fee, was unnecessary to be proved, as is shewn by the case of Lecatt v. Stewart, 2 Stewart, 474. The only matter in issue in such cases as this, is the possession, and it is immaterial whether it is connected with title or otherwise. The evidence was then, inadmissable, for the purpose of controverting this allegation, because, if it is permitted to be disproved, a question is made which involves the title, in direct opposition to the words of the statute. 5. It was equally inadmissable to show the fact of title being outstanding in the United States, as a justification of the entry. The plaintiff must have proved a possession, either actual, by having the land under his immediate control and dominion; or constructive, by being in the possession of a part of the tract, under color of title for the whole. Now, if the record in this suit had declared that the plaintiff made proof of his possession by the latter mode; it is apparent that the evidence offered by the defendant, had no tendency whatever, to disprove the case as made. It does not follow, because the United States is the owner of the land, that the plaintiff may not have had the possession ; nor could the jury be led to any conclusion, proper to this case, by such evidence. It was, therefore, properly rejected. No error is shewn in the record, and the judgment of the Circuit Court is affirmed.