#### CHARLES MITCHELL vs. JANE FLEMING.

December 1842.

In a proceeding by inquisition for a forcible entry and detainer, before a writ of restitution can be awarded, tlie juiy must find by their verdict that the party, forcibly dispossessed, had either a freehold or a term for years in the land, of the possession of which he has been deprived.

The case of the State v Nations, 1 Ired. Rep. 325, cited and approved.

Appeal from the Superior Court of Law of Burke County, at Fall Term, 1842, his Honor Judge Pearson presiding.

This was a recordari from the Superior Court of Law of Burke county, to certain justices of Caldwell county, requiring them to bring before the court, &e. the proceedings in an inquisition of forcible entry and detainer lately had before them in the county of Caldwell, at the instance of Jane Fleming against Charles Mitchell. The proceedings being returned appeared to be as follows :

State of North Carolina, ) Caldwell County. $

Andrew H. Tuttle and Alexander Perkins, justices of the peace for the said county, to the Sheriff of said county. Greeting:

Whereas, complaint has this day been made to us, by William Fleming, that a forcible entry has been made by Charles Mitchell, upon the lands and possessions of his mother, Jane Fleming, and forcibly detains possession of the same, contrary to the statute in such cases made and provided. We there command you,' in the name of the State, to cause to come before us at the dwelling house of Jane Fleming, on the waters of Lower Creek, in the county of Caldwell, on the 14th day of this instant, eighteen sufficient and disinter*124ested men, of the neighborhood of Jane Fleming, on the of Lower Creek, in the county aforesaid, being freeholders, to enquire upon their oaths of a certain forcible en-try and detainer, made with strong hand, (as it is said,) by Charles Mitchell and others, into the lands and premises in possession of Jane Fleming-, tenant for life of William Fleming and Robert Fleming, lying and being in the county aforesaid, on the waters of Lower Creek, against the form of the statute -in such cases made and provided. And have yon then and there this precept, and this you shall in no wise omit, &c.

Given under our hands and seals, this 13th day of Jan. 1842.

(Signed and sealed by the Justices..)

Upon which precept, the Sheriff returned that he had summoned the following jurors, (naming them.)

Charles Mitchell was also summoned in writing to attend at the same time and place. The justices, having met at the time and place appointed, proceeded to draw and em-pannel a jury of twelve persons, from the names returned by the Sheriff. Before doing this, Charles Mitchell, by his Attorney, appeared and tendered the following traverse in writing, to-wit: Charles Mitchell comes in his own proper person, before the justices, Andrew Tuttle and Alexander Perkins, now sitting in judgment on the case wherein the said Charles Mitchell is charged with being guilty of a forcible entry and detainer, and traverses the force alleged against him in that he entered into the premises as tenant for years under a lease from the heirs at law of Robert Flern-ing, Sen. dec’d. and James Fleming, dec’d. to-wit, William Fleming, Robert Fleming, Isabella Fleming, and others, and that he now holds possession by virtue of the said lease, and that the said lease has not yet expired.

Signed, CHARLES MITCHELL.

This paper the justices objected to; but they poposed that if the said Charles would shew cause on oath why the trial should not now be taken up, his affidavit would be duly *125considered, and if the reasons or canses of delay alleged by him were good and sufficient, time would be allowed to be prepared tor a hearing. This proposition being de-dined, the justices, assisted by the sheriff, proceeded to draw a jury, when the following persons were drawn, (here follow the names of the jurors,) who being duly sworn and impan-nelled to inquire into the matter of a forcible entry and de-tainer made by Charles Mitchell, in and upon the land and premises of Jane Fleming, the following evidence was submitted to them on the part of the said Jane: First, a copy of the last will and testament of Robert Fleming, deceased, ffie husband of Jane Fleming, and also a copy of the last will and testament of James Fleming, deceased, one of the legatees under the last will and testament of the said Robert, who appears, from the conveyances submitted to the justices and jury, to have been the original owner of the premises in dispute; from all of which it appeared satisfactory to the justices and jury, that Jane Fleming had a right as tenant for life to the possession of the same. Secondly, George Holloway being sworn, deposed that he was present, and heard William Fleming (who has for some years acted as the agent of his mother, Jane Fleming, in all her business transactions,) forbid Charles Mitchell from operating and digging for gold on the land of the said Jane — that Charles Mitchell replied it was a hard case to have discovered or opened a mine, and have to lose it — that the said Charles, after being thus forbid by the said William to operate and dig for gold on the land and premises in dispute, did continue to dig and operate on the land and premises in the possession of the said Jane. From which testimony, offered altogether on the part of the said Jane, the said Charles refusing to take any part in the proceedings, the jury returned the following verdict, to wit: The undersigned jurors duly summoned &c. &c. do find that Jane Fleming was in peaceable and uninterrupted possession of the premises claimed by her for many years, and that lately, heretofore, the said Charles Mitchell did enter upon the same, and is now in possession of the same, and the same doth hold forcibly with a strong *126amt, contrary to law and to the disturbance of the State.— (This verdict was signed by the jurors, and attested by the justices) Upon the return of this verdict, Charles Mitchell, fry fr*s attorney, appeared, and again tendered a traverse as before. The justices, however, without regard to the traverse offered by the said Charles, issued to the sheriff the following precept: (Here follows a copy of the writ of restitution.) “ The foregoing statement was certified by the justices in their return to the recordai'i.”

This case coming on for hearing upon this return, the counsel of Charles Mitchell moved to quash the proceedings had belore the justices, and for a writ of re-restitution ; first, because the justices refused to receive his traverse in writing; secondly, because the finding of the jury did not set out the estate of Jane Fleming, the relator, so that it might appear whether she was entitled to the relief sought for. Upon the first ground, the court was of opinion that as Charles Mitchell was present when the justices were acting in the premises, and was informed by them that if he was not ready he might continue the case to some day when he would be heard, he did, in fact, have the benefit of his traverse on the ’ question of force. Upon the second ground, the court was of opinion, that, as the return of the jury set forth merely that-the relator had been in possession for many years, without stating that she had either a freehold estate ora term for years, it was in this irregular and insufficient to warrant the justices in ordering a writ of restitution. It was, therefore, ordered that the proceedings be quashed, and a writ of re-restitution issued. From this judgment, the relator appealed to the Supreme Court.

Hoke for the plaintiff.

The 2d see. of the 4ÍHh ch. of the Revised Statutes embodies the provisions of 15 Rich. 2d & 8th Hen. 6, and should receive the same construction. The courts of England have decided that the summary proceedings under those statutes are highly penal in their character, and every thing necessary to constitute the offence *127must be clearly and positively stated. King v Oakley, 4th Barn. & Adolph. 307.

The inquisition in this case does not shew that the entry of the plaintiff was unlawful, and, for aught that, appears, his defence of his possession by foree was justified. King v Oakley, 4 Barn. <fc Adolph. 307.

The inquisition does not sheiv of what estate the defendant was possessed. State v Nations, 1 Ired. Rep. 377, 7 Mod. 116, 11 Mod. '273, 1 Mod. 73.

The evidence recorded by the justices, does not shew such force as would authorize the summary proceedings under the 2d section of the Statute. 1 Hawkins, c. 64, sec. 30. 1 Russel 417, 5 Carr. & Payne, 206.

The justices erred in rejecting the traverse tendered by the plaintiff. State v Nations, 1 Ired. Rep. 377.

Caldwell for the defendant.

Daniel, J.

In this inquisition upon a forcible detainer the jury “do find that Jane Fleming, (therelator,) was in the peaceable and uninterrupted possession of the premises claimed by her for many years, and that lately, heretofore, Charles Mitchell did enter upon the same, and is now in possession of the same, and the same doth hold forcibly with a strong arm, &c.” It is true, the justices certify that certain evidence was given, “from which it appeared satisfactorily to the justices and the jury, that the relator had a right as tenant for life, to the possession of the same.” But the inquisition of the jury is afterwards given distinctly in the very words of the jury and signed by the jury, and in it nothing of that kind appears, but it is in the words already quoted. Upon the finding of the jury thus set forth, the two justices Who held the inquisition, issued a writ of restitution to the Sheriff, who restored the relator to the possession. The Judge was of opinion that the writ of restitution should not have been awarded upon this finding by the jury, and he ordered re-restitution to be made. We are of opinion that the Judge was right. The second section of the act, (Rev. St. c. 49,) authorizes the justice or justices, who hold the in*128quisition, when the jury shall find the force as charged, to the party put out to be re-seized or re-possessed of the land so entered and holden as aforesaid ; and the said party he put in full possession of the said lands and tenements. But it is to be observed, that it is not upon every dispossession, either by a forcible entry or a forcible detainer, that a writ of restitution is to be awarded. By the 6th section of that statute, this writ is to be granted, only when the relator has a freehold estate, or a term for years in the land. And before the writ of restitution can be granted, the jury must find in their verdict that the relator had one or the other of these estates in the land. In this case, the jury did not find that Jane Fleming had either a freehold estate or a term for years. She might have been only a tenant at will, and then the writ of restitution could not legally have issued. State v Nations, 1 Ired. Rep. 377. The judgment must be ciffirmed.

Per Curiam. . Judgment affirmed.