State v. Butler, 1 N.C. 331, 1 Cam. & Nor. 331, January, (1801)

Dec. 1801 · North Carolina Court of Conference · with

1 N.C. 331, 1 Cam. & Nor. 331, January,

State vs. Butler.

This was an Indictment brought in Hillsboro Superior Court for forcible entry and detainer, as follows:

“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 Grandville, 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 hold, 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 land John Butler him the said Isham Parham from the aforesaid fifteenth day of January, in the 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, &c."

Being found guilty by the Jury, in Hillsboro 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.

The question was here argued by Norwood for the defendant, and Haywood for the State.

Norwood.—Some rules are laid down in the books, directory of the manner of drawing indictments of forcible entry, which appear not to have been strictly attended to in the present instance. The exceptions arising on the face of the indictment, together with others of a more general kind, I mean to urge as reasons why the writ prayed for should not be awarded.

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 apprized of the manner in which to make his defence, 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 appurtances, lituate 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, c. 64, f. 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 shewn in a particular manner, to entitle him to the benefit of this writ, under any one of the statuses. The indictment states, that Parham "was possessed of a certain term then unexpired.” But it ought specially 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. VI, it must have shewn that the party put out of possession was seised of a freehold, otherwise he could not be entitled to restitution under that statute. If the indictment be founded on the 21 f. 1 Car. XV, it ought to shew 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, c. 64, s. 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 shew 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 disseisor. 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 shewn 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 purposed. Those statutes ought to be strictly pursued, and there is not one of them that will warrant issuing the writ upon this indictment. And as the writ is not at common law, it cannot be 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.

Haywood.—It is admitted, that certainty and precision are requisite in the statement of a criminal charge, and particularly in a case of this kind, where restitution is sought; but it would have been difficult, if not impossible, to have drawn this indictment so as to have effected those objects more completely. It certainly is not necessary to be more particular in a case of this kind, than in a declaration of ejectment; in both, restitution is to be made, and the property detained should be so specified, that the sheriff may, without difficulty, execute his writ. Yet this description would have been sufficient in an ejectment, and even less certainty than this indictment contains. 1 Term 11. It would be sufficient in an indictment, or a plea in bar. Cowp. 683, 1 Term 65, Doug. 154.

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. Lit. 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. c. 15. This is not an indictment upon the 8 Hen. 6, and therefore no seisin is necessary; it is upon the first mentioned statute, and the defendant being within the benefit of that, it is not regular to 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, c. 3, s. 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.

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 doth not affect the right of property or possession : If the defendant hath either, he may resort to the legal mode of establishing his claim, to that mode directed by the bill of rights, s. 1, 12, 14. It is such conduct as the defendant’s that has a tendency to violate the instrument referred to; for he is endeavouring to establish a possession not sanctioned by law, without resorting to the trial by jury.

Hall, Judge.

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.

Taylor, Judge.—

Various objections have been made to the awarding of a writ of restitution in the present case; they relate either to the power and jurisdiction of the court, or to the legality and fitness of exercising such a power, under the several exceptionable aspects in which this case has been presented.

The legitimate authority of the superior courts is to be sought for in the act by which they are established, in the declaration of rights and the constitution, in the theory and frame of our Government, and in the result of a legal and regulated analogy to the courts of a similar construction, in the country whence our municipal law is derived. By the act of 1777, the superior courts are invested with cognizance of all pleas of the State, and criminal matters, of what nature, degree or denomination soever; whether brought before them by original or mesne process, or by certiorari, writ of error, appeal from any inferior court, or by any other ways or means whatsoever. The same powers and authorities which were exercised by any former judges in this territory, are likewise accorded to them, with the exception of those cases wherein the act has otherwise directed, and of those where the form of government and constitution have opposed barriers, to the ancient jurisdiction. The words of the act are manifestly comprehensive enough to include a power of administering complete relief, under the statutes of forcible entries, unless the kind of relief provided by them shall appear to be incompatible with the provisions of our bill of rights. But I cannot discern that the least invasion will be made of the constitutional rights of a citizen, by awarding a writ of restitution. It is certainly true, that no jury has passed upon the defendant’s property; and if issuing this writ amounted to a decision upon that, it might be fairly argued that he was condemned unheard. But the law has declared, that whosoever enters upon the possession of another, with circumstances of violence and terror, shall, upon conviction, pay a fine to the State, and be deprived of the possession which he has thus wrongfully acquired. It is no protection to the wrong doer, that he had a right to the freehold or possession, or that he had before been unlawfully deprived of them ; for the person who has used such violent methods of doing himself justice, is alike criminal with him who has not even the pretence of a right to assert. It was to guard the public peace, and to prevent the strong from forcibly ejecting the weak, that the several statutes upon this subject have been passed ; and these objects are most effectually attained, when to a fine, is superadded a wait of restitution ; thereby holding out to the offender, the absolute inutility of a possession acquired by forbidden means. Still, however, the right of possession, or of property, is not concluded ; for the defendant may have recourse to those methods of establishing them which the law has provided. The jury having found that the possession was obtained by force, the legal consequence is, that the defendant is to be deprived of it for that reason, and the party complaining to be restored, he being the person through whom the constitution has been violated ; for he has been deprived of his possession without a trial by jury, and without the sanctions of the law of the land. If the superior courts may entertain jurisdiction of indictments upon these statutes, and this they have done both before and since the revolution, then the act of 1777 contains an express provision which warrants them " to issue execution and all other necessary process thereupon.” The latter words evidently embrace a writ of restitution, without which, the justice held out by the statutes cannot be completely dispensed.

The extent of jurisdiction in criminal cases, both original and appellate, given to the superior courts by the act of 1777, and others subsequently passed, produces to a certain degree an analogy between these courts and others, whose jurisdiction can only be taken away by express negative words. And under such restrictions and qualifications as the constitution and principles of our government, as well as the arrangement of our judicature impose, the following description will apply to the superior courts : “ That they may proceed as well on indictments found before the other courts, and removed into them by certiorari, as on indictments originally commenced in them, whether the courts before whom such indictments were found, be determined or suspended, or still in effe, and whether the proceedings be grounded on the common law, or on some statute making a new law concerning an old offence, and appoint ing certain justices to execute it, as the statutes of forcible entries, &c ” 2 Haw. Pl. B. 2, c. 3, f. 3,6. From these considerations, I am inclined to believe, that the power of awarding a writ of restitution, is one of those which the superior courts may rightfully exercise.

I will now give my opinion upon the specific objections which have been made to the exercise of the power in the present case.

I apprehend that the first exception cannot be supported. " The term messuage is sufficiently certain and intelligible : by the grant of a messuage, the orchard, garden and, curtilage will pass.” Co. Litt. 5, b, and so by the devise of a messuage, though cum pertinentiis be not added. Cro. Eliz. 89, b. In an indictment for forcible entry and detainer, it is necessary to set forth the quality of the thing entered upon, as into a messuage, meadows, wood, &c. for entering into tenements generally is not good, because of the uncertainty. 2 Roll’s Rep. 48. But some of the authorities, shew, that the kind of possession of which the restitution is sought, should be stated with such certainty, as to evince that it is authorised by some one of the statutes. The present indictment will not warrants restitution on the 8 Hen. 6, because it does not state that the place wherein the force was committed was the freehold of the party grieved, at the time of such force. Latch’s Rep, 109. Nor are there any words in this indictment which necessarily imply that fact, as that the defendant disseised Isaac Hunter, which would be impossible, unless the freehold were his at the time of the force committed. 1 Haw. 284, f. 38. And if this point should be rendered doubtful by the contrariety of authorities. Yelvert 28, still, it is necessary, to sustain this application, that the defendant should have been charged with putting out and expelling Isham Parham, and disseising Isaac Hunter. Yelvert 165. The disseisin is the main point in such an indictment and must be set forth in substance. 2 Roll's Ab. 80. But it is admitted by the counsel for the State, that this indictment is not grounded on 8 Hen. 6, but is maintainable on the 21 Jac. in support of which it is argued, that the word term, technically, signifies a lease for years, and that under the latter statute, a tenant for years is entitled to restitution. Upon this point, the authorities are clear and explicit, that the indictment must state that the party was possessed of a term for years ; and that possession, simply, or the possession of a term, is not sufficient; since, in the first case, it may be understood that he was tenant at will, and in the latter, that he was possessed for term of life. 1 Ventris 306. I think it so plain, that upon this objection a writ of restitution ought not to be awarded, that it is unnecessary to give an opinion upon the rest.

Motion denied.