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Asa Buet ) Noble, for the Motion.

THE STATE.) Taylor, Solicit. Contra.

Motion for a new trial.

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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
of people. The statute of 5th Richard 2d. c. 8. for-
bids 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, Bar and SMITH concurred.

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COLUMBIA, November Term, 1814.





STARK, Contra.

Motion to set aside a non-suit granted by Judge

To a plea Smith.

of the statute of limitations

action on

a former

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

to recover


that both were for

the same

cause of

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



Nov.1814. is not unusual to reply a former writ, with an aver-

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
in a different form of action. But even if it had
been the same, and shewn by the record itself, it
would still have remained to shew that it would
prevent the statute from running. There are cer-
tain cases, in which the act of 1712, authorises
plaintiffs to commence a second action after the stat-
ute would have attached, provided it is commenced
within a year after the termination of the former
action. But this is not one of the cases.
point of view, this motion ought not to be granted.

In any

Justices Colcock, Smith, and GRIMkB concurred.

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