STATE OF NORTH CAROLINA, Haywood County — ss.
A record of the proceedings had before Joseph Keener and (326) J. L. Dillard, esquires, justices assigned to keep the peace for said county, at Holland's old fields, on Oconoluftee River in said county, under the act of Assembly of 1837, Rev. St., ch. 49, sec. 7.
On 3 March, 1838, the sheriff, A. G. Howell, returned before us the following precept: *Page 250 STATE OF NORTH CAROLINA, Haywood County — ss.
Joseph Keener and J. L. Dillard, Justices of the Peace for said County, to the Sheriff of said County — Greeting:
We command you that you cause to come before us at Holland's old fields on the Oconoluftee River in the county aforesaid, on the third day of this instant, twenty-four sufficient and indifferent men, of the neighborhood of Oconoluftee aforesaid, in the county aforesaid, being freeholders, to inquire upon their oath of a certain entry and detainer made with strong hand, as it is said, into the messuage and possession of one Samuel Sherrill, tenant for years of the heirs of James Holland, at Oconoluftee aforesaid, in the county aforesaid, against the form of the statute in such case made and provided; and you are to return upon every of the jurors by you in this behalf to be impaneled, 20 shillings of issues at the aforesaid day, and have you then and there this precept; and this you shall in no wise omit, upon the peril which shall thereof ensue. Witness the said Joseph Keener and John L. Dillard, esquires, in the county aforesaid, on the first day of March, 1838.
JOSEPH KEENER, [SEAL] J. L. DILLARD. [SEAL]
Upon the back of which the sheriff made the following indorsement and return, to wit:
"According to the within warrant, I have summoned the following within named persons as jurors of inquiry" (here follow the names of thirteen persons), "and do hereby indorse to each juror 20 shillings, which makes $24. I set my hand and seal.
A. G. HOWELL, Sheriff.
Before the jury were called over the defendants, being present, were informed by the sheriff that they could make any objection to the (327) jury as they were called and before they were sworn, upon which they challenged John B. Love, and another was sworn in his place. John P. Adams and Nelson G. Howell were then examined as witnesses in behalf of the complainant, the first of whom proved an entry by defendants with force, and the second some threats by defendants to detain by force. Whereupon the defendants called one Sherrill, son of complainant, as a witness for them, and no objection being made by complainant, he was permitted to be examined. He proved his father's possession under a lease of Thomas Love, agent of Holland's heirs, the entry of defendants on said possession, and that said lease had not expired at the time of said unlawful entry by defendants. *Page 251 Whereupon the jury retired and returned a verdict of forcible entry anddetainer against the defendants, which was afterwards drawn up in the following form and signed by the jurors, to wit:
STATE OF NORTH CAROLINA, Haywood County — ss.
An inquisition for the State, taken at, etc., this 3 March, 1838, by the oaths of (here the jurors were named), good and lawful men of the said county, before Joseph Keener and John L. Dillard, two of the justices, etc., who say upon their oaths aforesaid that Samuel Sherrill, of the county aforesaid, planter, long since lawfully and peaceably was possessedas tenant for years of the heirs of James Holland, deceased, of and in one messuage, etc. (describing it), and his said possession so continued until the defendants (naming them) and other malefactors unknown, on 28 February, 1837, with strong hand and armed power into the messuage aforesaid, etc., unlawfully did enter and him the said Samuel Sherrill therefrom, with strong hand, expelled; and the said Samuel, so dispossessed and expelled from the said messuage, etc., from the said 28 February, 1837, until the taking of this inquisition with like strong hand and armed power, did keep out, and do yet keep out, to the great disturbance of the peace of the State and against the form of the statute in that case made and provided. In testimony whereof, as well the said justices as the inquest above named to this inquisition, interchangeably set their hands and seals the day and year first (328) above written.
(Signed and sealed by the jurors and justices.)
STATE OF NORTH CAROLINA, Haywood County — ss.
It is adjudged by us in this case, according to the foregoing inquisition, that the defendants (naming them) being guilty of forcibleentry and detainer and the costs of said inquisition, amounting to $24, therefore judgment is rendered against the said defendants (naming them) for the said amount. Witness our hands and seals, this 3 March, 1838.
(Signed and sealed by the justices.)
Upon which the following writ of restitution (signed and sealed by the said justices) issued to the sheriff:
[Here follows the writ, and the return of the sheriff that he had dispossessed the defendants and put the plaintiff in possession of the premises. Then a certificate of the justices that they had returned a true and perfect record of their proceedings, etc.]
The cause came on for hearing at Fall Term, 1840, before Bailey, J., when the defendants moved to quash the proceedings, which motion was overruled by the court. His Honor then, upon motion of the defendants, *Page 252 permitted an issue to be made up and tried by a jury as to the forcibleentry and detainer; upon which trial the plaintiff, in submission to the opinion of the court, suffered a nonsuit. From the judgment of the court the plaintiff appealed to the Supreme Court. This is a writ of recordari, removing into the Superior Court an inquisition and proceedings had before justices under the statute offorcible entry and detainer.
In the Superior Court the defendants moved to quash, first, on the ground that the term of the relator was not set out in the verdict of jury of inquisition. The verdict states that the relator "was (329) possessed as tenant for years of the heirs of James Holland." This, we think, is sufficient. Section 6 of our act of Assembly (Rev. St., ch. 49) is copied from the Stat. 21 Jac. 1, ch. 15. Under that statute the verdict must show that the party injured was possessed of such an estate as will bring him within its provisions; and upon this ground it has been resolved that such a verdict, setting forth in general that the party was possessed, or that he was possessed for a certain term, without adding that it was for years, is not good. 1 Hawk. P. C., 505, sec. 38. But if the verdict finds that the person entered upon was possessed for a certain term of years, it is good and sufficient. The verdict in this case has found that the relator was possessed of such an estate as brings him within section 6 of our act of Assembly.
The second ground taken by the defendants to quash was that the relator had elected to proceed by indictment. There is nothing in the case sent here to show that an indictment had ever been preferred, much less a conviction or acquittal on it. The act of Assembly does not give to the justice any power to fine. The court was correct in overruling both propositions taken. The defendants then tendered a traverse; the court received it, and caused a jury to be impaneled, when, as the case states, a judgment of nonsuit was entered. We are of opinion that the court erred in permitting a traverse in this case. In England, under their statutes, an inquisition taken before justices is frequently ex parte and in the nature of a bill of indictment. If the jury find the original entry to be illegal and a forcible detainer, the justice cannot award restitution without giving the defendant an opportunity of traversing the inquisition; he should call him to answer, for no one ought to suffer without an opportunity to defend himself. 1 Hawk. P. C., 541, sec. 60. If the defendants have notice, they may tender a traverse to the inquisition (it must be in writing, it is said), and then the justices or justice *Page 253 should award a venire facias, whereon a traverse jury must be returned to try the force and other material allegations. 1 Hawk. P. C., 541; 2 Chitty Gen. Prac., 240, 241. And no restitution shall be awarded until the traverse jury find the force, unless the defendant (330) should decline traversing. 3 Salk., 169; 2 Chit. Gen. Prac., 241. If the defendants decline to traverse, it is then like a submission to an indictment, and the judgment may be rendered. In the case before us the defendants had actually all the benefit of a traverse before the jury that took the inquisition. They were present and examined witnesses; they declined to tender any formal traverse to the inquisition, which was found, and therefore the award of restitution by the justices was agreeable to law. The defendants, when they obtained this recordari, did not make any affidavit of misconduct or irregularity in the justices in receiving improper testimony or refusing proper testimony, or otherwise. If there had been misconduct in the justices, it certainly could have been corrected in the Superior Court. 2 Chitty Gen. Pr., 241; Rex v. Jones, 1 Stra., 474; Bac. Ab., Forcible Entry, G. The mode of correcting it is on a motion for acertiorari to state explicitly all the objections to the proceedings; and if it be apprehended that the justices will not faithfully return all the proceedings as they occurred, but will attempt to state them in an improved manner, then, upon a special affidavit of the facts, a mandamus as well as a certiorari may be obtained to compel them to return every stage of document and proceeding according to the facts. And if the court should be of opinion against the sufficiency of the proceedings before the justices, they will then quash the conviction, and must, as of course, issue a writ of rerestitution. 2 Chitty Gen. Pr., 241. The power given to justices to make inquisition of forcible entry and detainer is summary, and it was intended that justice should be done in an expeditious manner. There is no appeal given by the statute. If the defendants have notice and the traverse jury find the force, and the proceedings are regular, or if the defendants decline to traverse, they must restore the possession, if the relator be tenant for years or has a greater estate in the land. If the defendants have any title, they must bring their action of ejectment, and obtain possession in a peaceable manner.
This case, as it stood before the Superior Court, was only in the nature of a writ of error. The duty of the court, on a motion to quash, was only to examine the case recorded and sent up there, and see whether the taking of the inquisition and the awarding of restitution (331) by the justices were agreeable to law.
We are of the opinion that the order made permitting the defendants to traverse the inquisition in the Superior Court, and the proceedings on *Page 254 that traverse, must be reversed, and that judgment be rendered affirming the proceedings before the justices.
PER CURIAM. Judgment accordingly.
Cited: Mitchell v. Fleming, 25 N.C. 128; S. v. Anders, 30 N.C. 18;Jordan v. Rouse, 46 N.C. 121; Grissett v. Smith, 61 N.C. 165; Griffinv. Griffin, ib., 167; Little v. Martin, ib., 241; S. v. Griffin,71 N.C. 305.
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