#### THE STATE *vs.*TIMOTHY ANDERS & AL.

In a ease of forcible entry and detainer, a magistrate has no right to award restitution, unless the jury have found by their verdict, thatthe complainant had *some estate*in the land, either a freehold or for a term of years.

Without such finding the magistrate may bind over the defendant to the Court to answer to an indictment for the forcible entry; but, without such finding, he has no jurisdiction to oust the defendant of his possession and put the complainant in. If he does so, he is himself liable to an indictment for forcible entry.

The cases of *Mitchell*v. *Fleming,*3 Ired. 123, and *State*v. *Nations,. 1*Ired. 325 cited and approved.

Appeal from the Superior Court of law of Bladen County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.

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 these words — “ the jury find that said Flynn, entered peaceably, but held the premises by forcethat 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.

*16It did not appear that said Anders made any affidavit 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 authorise 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.

*Strange,*for the appellant argued,

That they were not guilty, because the magistrate was acting in a judicial capacity and every thing done by his authority, under his judgment, was valid till reversed in some proper proceeding, and neither he, nor any acting under him, were subject to suit or indictment. *Cunningham*v. *Billiard,*4 Dev. &Bat. 351. *Floyd*v. *Barker,*12 Coke 23. *Dr. Greenwell*v. *Dr. Burwell*& *others,*1 Ld. Raym. 468.

That a judgment cannot be impeached collaterally. Lord Manfield’s *dictum*in *Moses*v. *McFarlane,*2 Bur. 1009. *O’Hara*v. *Hall,*4 Dali. 340. *Johnson*v. *Johnson,*3 Bos & Pull. *169. Marriott*v. *Hampton,*7 T. R. 565. *Phillips*v. *Hinton,*2 H. Black. 402. *Hammond’s N. P.*48 56. *Jones*v. *Judkins,*4 Dev. & Bat. 454. *Cobb*v. *Komngay*& *others, 6*Ire. 358.

*17That in this matter the proceedings were of record, and that the magistrate acted judicially. 1 *Haw. P. C. Gh. 28, Sec. 8. Rev. Stat. Gh.*49, *Sec.*7.

The *Attorney General,*in reply.

As to the 1st point, he referred to *State*v. *Nations,*1 Ired. *829. Mitchell*v. *Fleming,*3 Ired. 123.

2nd. 2 *Chiity’s Gen. Practice,*240. *King*v. *Wilsom 3*Adolphin & Ellis, (30 *Eng. G.*& *Rep.*229.) *Respublica*v. *Campbell,*1 Dali. 354.

3rd. 4 *Wentworth’s System of Pleading, p.*132 — precept directed to the Sheriff. *State*v. *Nations.*

*Rev. Stat. Gh.*31, *Sec.*43. “Other officer,” means Coroner.

*Ch.*SI *Sec. 59;*“proper officer,” refers to Sheriff or Coroner.

*Ch.*26, *Sec.*2 *and*3. “Sheriff a proper officer,” means Coroner. Constable cannot execute such process.

*Ch.*109, *Sec.*11 — Coroner to act as Sheriff in case of vacancy.

*Rev. St. Ch.*10, *Sec.*1 *and*2 — “ other office!'” cannot mean constable.

1 *Hawkins, Ch.*26 — constable an inferior officer^

Daniel, J.

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 messuage 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 An-ders ; 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 *18jury by tbeir verdict had not found that Anders had any *estate,*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,*8 Ired. 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, had either a freehold, or a term for years in the land, of the possession of which he had been deprived. In the case of the *State*v. *Nations,*1 Ired. 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 iguorance of the law, or error in judgment. The justice had power to enquire, 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 offence 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.