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Asa Buet ) Noble, for the Motion.
Motion for a new trial.
Nort, 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
COLUMBIA, is not necessary, as has been contended, that to con
stitute a forcible entry, it should be with a multitude
Justices BREVARD, GRIMKE, Bar and SMITH concurred.
COLUMBIA, November Term, 1814.
WILLIAM FOWLER) FARROW, for the Motion.
VS. JOAN WILLIAMS.
Motion to set aside a non-suit granted by Judge
To a plea Smith.
of the statute of limitations
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, 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 un
ney paidfor former writ; and as the brief stated “ with proper horse. averments."
Held, that parolproof
that both were for
Nott, J. Upon looking into the proceedings, action, I do not find any plea of the statute of limitations. was inad
missible. I do not know what the counsel considers proper It must be
shown avepments 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
ment that is intended to declare in the same form of FOWLII
action. But there could be no such averment in WILLIAMS this case, because the former proceedings are before
the court, and it appears that the plaintiff declares
Justices Colcock, Smith, and GRIMkB concurred.