NOTT, J. The principal grounds in this case, on which the defendant rests his motion for a new trial, is a misdirection of the judge in the court below, in charging the jury that, from the evidence of a forcible detainer, they might find the defendant guilty of a forcible entry. Every unlawful entry upon the possession of another is, in the eye of the law, a forcible entry. But it must be an actual, and not a mere constructive possession. Two persons cannot be in the actual possession of the same land at the same time. And wherever the unlawful entry of one, necessarily dispossesses the other, an indictment for a forcible entry may be maintained. be maintained. And although the possession may have been surreptitiously obtained, yet, if it is maintained by force, the entry will be considered forcible. Otherwise a person may be dispossessed of his cornfield, his orchard, and even his dwelling house, if an intruder should slyly creep in, when he is out about his ordinary business. It Nov.1814. V. STATE COLUMBIA, is not necessary, as has been contended, that to constitute a forcible entry, it should be with a multitude BURT of people. The statute of 5th Richard 2d. c. 8. forbids any person to enter into any lands, or tenements, except when entry is given, and in such case, not with strong hand, nor with multitude of people. So that where the entry is lawful it must not be done with multitude of people; but where it is not lawful it may not be done at all. And from the relative situation of the parties before, and the violence and force used after the entry, the jury have a right to find the defendant guilty of a forcible entry, although no person was present at the time to prove the fact. The decision of the judge, therefore, was correct and proper; and the verdict ought not to be disturbed. Justices BREVARD, GRIMKE, BAY and SMITH concurred. COLUMBIA, November Term, 1814. WILLIAM FOWLER) FARROW, for the Motion. vs. JOHN WILLIAMS. STARK, Contra. Motion to set aside a non-suit granted by Judge Smith. COLUMBIA, No .1814. FOWLER To a plea of the statute of limitations action on for deceit replied In this case, it appeared that the plaintiff com- in aspecial menced an action of assumpsit to recover back mon- the case ey he had paid for an unsound horse, in which ac- in the sale tion he was non-suited. He then commenced a of a horse, a former special action on the case for a deceit, in represent- suit was ing the horse to be sound, when he was otherwise. which was But, four years having elapsed before the last action assumpsit was commenced, the defendant plead the statute of back m limitations in bar. To which the plaintiff replied a an unformer writ; and as the brief stated "with proper horse. averments." to recover ney paidfor sound Held, that parolproof that both were for the same cause of missible. shown NOTT, J. Upon looking into the proceedings, action, I do not find any plea of the statute of limitations. was inad. I do not know what the counsel considers proper It must be averments in such a case. It would appear that the by the reonly question made in the court below was, whether cords he should be permitted to give parol evidence that selves the former suit was for the same cause of action? I think the testimony was properly rejected. In England, to the plea of the statute of limitations, it them COLUMBIA, Nov.1814. is not unusual to reply a former writ, with an aver ment that is intended to declare in the same form of FOWLER action. But there could be no such averment in WILLIAMS this case, because the former proceedings are before V. the court, and it appears that the plaintiff declares Justices COLCOCK, SMITH, and GRIMKE concur red. |