Bracken v. Preston

Miller, J. Charles Bracken commenced proceedings before a justice of the peace of Iowa county against the defendants, under the act to prevent forcible entries and detainers. The complaint charged that the defendants made an unlawful and forcible entry into his lands and tenements and with strong hand detained the same. The jury found for the defendants, and the case was removed by the plaintiff by certiorari, to the district court of Iowa county, where the judgment before the justice was affirmed. The plaintiff thereupon sued out this writ of error. The first error assigned is, that the justice refused to have the jurors sworn to answer questions respecting their capacity to serve as jurors, and whether they had formed or expressed an opinion of the merits of the cause. Section 26 of the act concerning grand and petit jurors, gives authority to the district courts to swear jurors, but not to justices of the peace. There is no such authority given by law to justices of the peace. Without authority by law, the court or justice has no right to require jurors to be sworn to answer questions, whether they have declared opinions on the case. It would be the duty of the justice to admonish them, that if they [368] did not feel indifferent, or had prejudged the cause or declared their opinions, they should disclose it. Commonwealth v. Dennie, 4 Yeates, 267. Without an act on the subject, a juror may be sworn, but there is no obligation to do so. McCorcle v. Binns, 5 Binney, 340. In this case there is not even an allegation that any one of the jurors had formed or expressed an opinion, and the justice not being obliged by law to swear a juror on the subject, there was no error in the refusal of the justice to do so. But that there should be a law requiring it in cases before justices of the peace, there is no doubt. The second error assigned is as follows : The lease to Andrew Rumfrey was only a parol lease which only created a tenancy at will, and might terminate at the option of either party; and Rumfrey had not such an interest as could be transferred. This relates to testimony given on the part of the defendants, and which should not have been allowed before the jury; and will not be considered here. If the cause had turned on this evidence, the judgment before the justice should be reversed. The defendants are proceeded against for forcible entry and detainer. They have no right to justify the force by showing title in themselves. It is in the nature of a criminal proceeding against them, and they cannot justify the forcible entry and detainer on the strength of their title. In a 'prosecution of this nature, the title to the premises, as between the defendants and relator or complainant, cannot be inquired into, though the latter is bound to set forth his title so far as to show himself within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own, as a substantive matter of defense, because the question of title cannot be tried in this action. People v. Godfrey, 1 Hill, 240. In a proceeding of this kind, the complainant must set forth a seisin or possession within the purview of the act, or whether his estate be a freehold or a term of years; and on the traverse, the [369] allegations as to Ms estate must be proved by Mm. But the defendant cannot justify the force by showing a title in himself. He may controvert the facts by wMch the complainant attempts to show title in himself. People v. Nelson, 13 Johns. 340. The same doctrine will be found in the cases of People v. Ricket, 8 Cowen, 226; People v. Leonard, 11 Johns. 504. And if the title of the defendant, or his right of possession is paramount, he must resort to an appropriate remedy to maintain his rights. The third error assigned is as follows: “It having been proven that the plaintiff was in the peaceable possession of the land, he could haVe been ousted only by due course of law.” By the sixteenth section of the act to prevent forcible entries and detainers, the district court to wMch any certiorari is returned, shall. proceed to hear and determine the same, as the very right of the case shall appear, without regarding technicalities or imperfections in the return. Evidently, from tMs section and other provisions in said statute respecting the removal of causes by certiorari to the district court, that court has the power to decide upon errors of fact as well as of law. This court is a court for the correction of errors in questions of law, and generally should not inquire into the correctness of the decisions of the district courts in questions of fact. As the court is not full, and tMs case does not require it, we will not in this case establish a rule on this subject, although referred in the argument to a case in point. Columbia Turnpike Company v. Hayward, 10 Wend. 422. In this case the complainant did not make out by proof, a forcible entry and detainer against the defendants. Judgment affirmed with costs. Irvin, J., being a part owner of the land, though not interested in the subject-matter of this suit, declined sitting in the case.