This is an indictment for a forcible entry by the defendants upon the possession of one Flynn, and on the trial it was fully proved. On behalf of the defendants it appeared that an inquisition of forcible entry and detainer, at the instance of the defendant Anders, had been taken on the premises, under which said Flynn was ousted; that it had been returned to the Clerk of the Superior Court of Bladen, and by the counsel for the State it was admitted to have been lost or mislaid, but the regularity of said requisition was denied. In proving its contents it appeared that a jury had been summoned; that they appeared on the premises; that they were sworn by the magistrate; that said Flynn was present; that they returned their verdict in *Page 23 these words: "The jury find that said Flynn entered peaceably, but held the premises by force"; that the magistrate adjudged that restriction should be made, and thereupon the said Flynn was put out of possession and the said Anders put in by the defendants.
It did not appear that said Anders made any affidavit (16) or written complaint before the magistrate on which said inquisition was founded. And it appeared that the jury had been summoned by a constable. The court was of opinion that a constable was not the proper officer intended by the statute to summon the jury, and that an affidavit in writing ought to have been made before the magistrate by said Anders to authorize the proceedings. And the court, in direct terms, charged that as the verdict of the jury did not find that said Anders had any estate whatever in the land of which he sought to dispossess said Flynn, the award of restitution by the magistrate was null and of no effect, and offered no protection to the defendants. Under this charge the jury returned a verdict of guilty against the defendants. A rule for a new trial was moved for, because of misdirection, which on argument was discharged.
Judgment was pronounced against the defendants, and thereupon the defendants Anders and Evans appealed to the Supreme Court. The defendants, with force and arms, and with a strong hand, entered upon the premises of one Flynn, and him dispossessed and took possession of the message and appurtenances, and have held them up to this time. The defendants insisted that their entry was lawful, and they introduced as evidence on the trial the proceedings which had taken place on a warrant for a forcible entry and detainer which had before that time been issued by Evans (a justice) at the instance of Anders; all of which is stated in the case.
The judge was of opinion that Evans, the justice, had no power to restore Anders by force of those proceedings, because, if all other things had been correctly done the jury by their verdict had not found that Anders had any estate, (18) either of freehold or for a term of years in the land. We concur with his Honor; the very question was decided by this Court in Mitchell v. Fleming, 25 N.C. 123. In that case we said that before a writ of restitution can be awarded the jury must find by their verdict that the party forcibly dispossessed *Page 24 had either a freehold or a term for years in the land of the possession of which he had been deprived. In S. v. Nations, 23 N.C. 325, this Court held the same doctrine.
But it is insisted that the justice (although he personally assisted Anders in gaining possession, in the manner described in the indictment) is not liable in law to be indicted, because he acted under ignorance of the law or error in judgment. The justice had power to inquire whether Flynn had made a forcible entry upon the possession of Anders, and, if the evidence satisfied him that the fact was so, he might have bound him over to court, to have been indicted for a forcible entry. This course he did not pursue, but he forcibly dispossessed Flynn and put Anders into possession. This was not an error in judgment; it was an act the statutes gave the justice no power or authority to do; his action in the matter was not voidable, but was absolutely void and tortious. Without the finding by the jury of an estate for years, at least, in Anders, the justice had jurisdiction to bind the offender to answer personally for the offense of forcible entry. But without such finding he had no jurisdiction to oust Flynn of his possession and put Anders in. It is, therefore, not a case of error of judgment of a judicial officer, upon a matter within his jurisdiction, but of usurpation of power, beyond his jurisdiction.
We think the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Grissett v. Smith, 61 N.C. 165.
(19)