#### ALEXANDER WATSON *vs.*PETER A. McEACHIN *et al.****

Where College buildings, the title of which is in the Trustees, are partly occupied for College purposes by the students and teachers of the College, a Steward who occupies another part of these buildings, without showing a lease, must be considered as the mere servant of the proprietors and liable to be expelled by force.

ActioN of trespass, tried before his Honor Judge PersoN, at the Spring Term, 1855, of Robeson Superior Court. Pleas: General issue; and Justification.

The plaintiff produced *Pr. Smith*as a witness who testified: “That the plaintiff was in the possession of a building in Robeson county,known as “Eloral College building;” that he had *208beds and furniture of other kinds in the upper rooms of the building, ’and that he had the control and management of the' rooms; that they had been occupied, and two of them were still occupied, as sleeping apartments, by the teachers at *Floral*College, who boarded with the plaintiff about the 10th of January, 1854, and the others were locked.; that the pupils made up their own beds and kept their rooms in order; that plaintiff’s servants swept the passages, and that he saw them putting the beds, &c., in the rooms in the early part of the year. On that day, the plaintiff sent for the witness : he went to the building and saw beds and other furniture in the yard, and upon the stairs. Witness •went up stairs and found there the defendants, Peter A. and Jesse, and some of the slaves of the defendants and two other persons. Defendant, Jesse, said witness had not seen them break any door, but if he would wait a little he would ; whereupon he and McEachin ¡jroceeded to break open several doors, wrenched off several looking-glasses, and broke them; tore down window curtains and otherwise injured the furniture. Witness remonstrated, when defendant replied, “ he would not take them away and we are able to pay for them. McEachin said if the plaintiff would wait till they got through, they would put him down also. He stated that some of the lower rooms of the building were used for recitation and other exercises of the College.”

The same facts were proven in substance b} other witnesses.

The defendants then offered in justification, a proceeding had before a justice of the peace, and showed that under -it the plaintiff had been put out of possession of the steward’s hall building, some days before, and that it was a separate building from that called the College buildings; that they were trustees of Floral College, and had been appointed a committee to take steps to get the plaintiff out of possession. A Mr. Mclnnis was called, who stated the lease of the plaintiff began _ on the first of January, 1853, and ended 1st of January, 1854.

The proceedings before the magistrate are not set forth, because it was conceded that they were irregular and invalid.

*209His Honor charged the jury that possession in the plaintiff was necessary to sustain his action — that there was evidence of a lease of the steward’s hall to the plaintiff, and that he went into possession by virtue of that lease, and if they were satisfied that the rooms, in which the alleged trespass was committed, formed a part of the premises which were the subject of the contract with the trustees, and that contract was a lease |br one year; that occupation of the rooms by the students and teachers, who were boarding with him, was the- plaintiff’s possession and not the possession of the trustees;; that there might be two distinct possessions in the same building,. and if the-jury were satisfied that the plaintiff had the possession of the upper rooms, that although the defendants entered the lower rooms peaceably, and went up stairs under the circumstances stated by the witnesses, that did not deprive plaintiff of his possession ; that there was- no evidence that the plaintiff was. occupying as- the mere- servant of the trustees.; and that all the evidence-on that point tended to show alease, and that it was for the jury to say whether it was a lease, and whether it embraced the rooms- where the trespass- is- alleged to- have taken place.

The Court further told the jury, that if they were not satisfied that there was-a lease, yet if they found that the plaintiff had the control and management of the rooms- ;• that the furniture in them was his property; that two of' them were-occupied by his boarders, and that the others- were locked and the keys in his- possession, and that these had also been occupied by his boarders until a short time- before, this would amount to a possession in the plaintiff which would enable him to sustain this action.

His Honor' charged also that the magistrate’s proceeding was not a justification. Defendant’s counsel-excepted to this instruction.

Yerdict for the plaintiff. Judgment and .appeal.

*Troy*and *Strange,*for the plaintiff.

*Banks*and MoBugald, for the defendants.

*

 The Chief Justice, from personal considerations, declined to take any part in this and the next following case.

*210Battle, J.

It is admitted by the counsel for the defendants that the proceedings on the inquisition for a forcible detainer, were not, on account of certain defects apparent therein, any justification for their act in turning the defendant out of the ¿rooms in the Floral College building. But they contend that, in occupying those rooms, the plaintiff was the mere servant of the trustees of Floral College, under whose authority they acted, and that, therefore, they had a right to expel him from the rooms upon his refusal to leave them. The plaintiff insisted that he had rented the steward’s hall, -attached to the College, and the upper rooms of the main College building itself; andthathehadpossessionof them under his lease, which, as he contended, had not expired when the wrong complained of was committed by the defendants ; and that, at all events, even if his lease had expired or did not embrace the rooms in question, he was in the actual peaceable possession of them, and that consequently the defendants were guilty of a trespass in turning him out of them. His Honor instructed the jury that, in either view in which the plaintiff had presented his case, he was entitled to recover, and the propriety of those instructions is brought before us upon the appeal of the -defendants.

The terms of the alleged lease are not very distinctly shown by the testimony which is set forth in the bill of exceptions, but that is not of much consequence in the determination of the case, because his Honor held that if the plaintiff had the control and management of the rooms, and the furniture in them was his property, and some of them were occupied by his boarders, and others were locked, and the keys in his possession, after having been recently occupied by his boarders, he had such possession of them as entitled him to maintain the action against the defendants. In this opinion of his Honor, it is assumed that the legal title of the College buildings was in the trustees of the College, of whom the defendants were a committee, and that they were in the actual occupation, for College purposes, of the lower rooms: under these circumstances, we cannot see how this case can be dis*211tinguished from that of the *State*v. *Curtis,*4 Dev. & Bat. 222. That was a case where the proprietor of a school employed a person named Pope, as a steward and servant in the establishment, and assigned, for his lodging, rooms in a house situated within the curtilage, 'but not connected with the dwelling house of the proprietor by any common roof or covering, and for which lodging rooms the steward paid no rent. The Court decided that the house occupied by the steward was not, in law„ *Ms*dwelling house, but was the. dwelling house of the proprietor of the school, and that no indictment would lie against the proprietor for an entry and expulsion of the steward from such house, provided there was no injury to his person, or other breach of the peace.

,- Now in the absence of any lease for the rooms in question in this case, the plaintiff must have occupied them as the mere servant or agent of the trustees, and he could not have any possession distinct from theirs. He could not, therefore, maintain an action against them, or the defendants, as their committee, for removing his furniture from the rooms after a demand and refusal to surrender them, provided they used no unne.cessary violence in doing it. He certainly has no right to complain of their breaking the doors of their own rooms.

The subject is fully discussed in the case to which we have alluded, and we deem it unnecessary to repeat the reasons given for the decision. See also *State*v. *Pridgen,*8 Ire. Rep. 84.

Our conclusion, then, is that his Honor erred in the latter part, at least, of the instructions which he gave the jury, and for this there must be a *venire de novo.*

PeR CuRiAM. . Judgment reversed.