#### THE STATE v. LEWIS JOHNSON AND CHARLES ROSE.

Whether an indictment will lie at the common law, for a forcible detainer, after a peaceable entry, Qu ? But it is certain, that neither by the common law, nor under the statutes, can it ho maintained, whore the entry is both peaceable and lawful.

This was an indictment at common law for a forcible entry and detainer, tried at Wilkes, on the last Circuit, before his Honor Judge Martin.

On the part of the state, it was proved, that the prosecutor was in possession, claiming, to be owner, of the premises on which the trespass was alleged to have been committed: that in one of the fields, there stood an old dwelling-house, in which he had placed a quantity of straw, and a basket, containing a bag and an apron: that these articles continued in the house, until the day when the trespass complained of took place: that on that day, the prosecutor and his wife went to the house, intending to occupy it; when they found, that the defendant, Johnson, had thrown the straw and the basket out of the house, into the yard, and was standing in the door, with a large stick, and threatened them with personal violence, if they presumed to enter: that the other defendant, Rose, was at that time engaged at work in the field. It was further stated by the prosecutor, that he himself had done *325some ploughing in the field preparatory to making a crop in it. The defendant Johnson then produced in evidence a sheriff’s deed to himself, for the same premises, by which it appeared, that he had purchased them, before the time of the alleged trespass, under execution, as the property of the prosecutor: that after his purchase, and a few days before his said alleged trespass, he had entered on the premises, surveyed them, and directed the other defendant, Rose, to take possession of, and occupy the same. He also proved, that there was no shutter to the door of the house ; but only some rails placed across the door-way to keep out stock. Upon this evidence, the jury, under the instruction of his Honor, found the defendants guilty. A new trial being moved for, and refused, the defendants appealed.

No counsel appeared for the defendants.

The *Attorney-General,*for the state.

Daniei,, Judge.

The case under consideration is an indictment at common law, for a forcible entry and forcible detainer. The defendant peaceably entered, and the conviction is on that branch of the indictment, which charges a forcible detainer. This bring us to the inquiry, whether Johnson, if he had a right of entry, and did enter peaceably, had not a right to detain with force, and with a strong hand *1*No question appears to be raised by the case, as to Johnson’s title. We take it, therefore, that the judgment and execution under which the sheriff sold (as well as the deed) were either exhibited or admitted on the trial. We have examined the case, and now decide it, on the understanding, that whatever interest or estate the prosecutor formerly had in the land, had passed to Johnson, by the sheriff’s deed; and that he had a legal right of entry. In *M‘Dougall*v. *Sitcher,*1 John. Rep. 43, it was decided, that a purchaser of real estate, under an execution, may enter and take possession of the premises in a peaceable manner, though some goods of the former proprietor are left on them. The same doctrine was held by the Court, in the case of *The People*v. *Nelson,*13 John. Rep. 340. In *Taylor*v. *Cole,*3 Term Rep. 292, *326the Court of King’s Bench held, that a purchaser under a sheriff’s sale, on an execution, might peaceably enter, and retain the possession. He may break open the outer door of the house, and take possession, although goods of the last tenant remain there. 1 Bing. 58; S. C. 14 Eng. Com. Law Rep. 59. If he who has a right to enter, obtains possession by *force,*the person who had no right to retain the possession, cannot sustain an *action*for such forcible regaining the possession, so far as regards any alleged injury to the house or land; but at most, only for any unnecessary personal injury in turning him out, or avoidable damage to the furniture. *Taunton*v. *Costar,*7 Term Rep. 427. *Rex*v. *Wilson and others,*8 Term Rep. 357, *Turner*v. *Maymott,*1 Bing. 158; 8 Eng. Com. Law Reps. 280. *Wildbor*v. *Rainsforth,*8 B. & C. 4; 15 Eng. Com. Law Reps. 144. 1 Price, 4. *Rogers*v. *Pitcher,*6 Taun. 202; 1 Eng. Com. Law Reps. 355. But if he who has a right of entry, be guilty of a *forcible entry,*he may be indicted for a disturbance of the peace. In such a case, the owner ought to await the result of legal proceedings by ejectment. Johnson, having a right to enter, and doing so in a peaceable manner', which is defined by an ancient statute, (5 Richard 2, c. 8,) to be, “ not with strong hand, nor with multitude of people, but only in a peaceable and easy manner,” had a right to *retain*possession so lawfully gained, by force, in the same way that he might defend any other portion of his real or personal property. The entry, to authorise proceedings in a summary way, before Justices, under the statute of 8 Henry 6, c. 9, must be an *unlawful entry,*followed by a forcible detainer, and so stated in the inquisition, or it will be quashed. *The King*v. *Oakley,*24 Eng. Com. Law Reps. 61. If an indictment will lie at common law for a forcible detainer, after a peaceable entry, a question on which much doubt is entertained, we hold it to be certain, that it cannot be maintained for such a detainer, either by the common law, or under the statutes, if the peaceable entry were also lawful. Johnson’s entry was peaceable and lawful; and Rose, the other defendant, entered by his permission, peaceably, and made no effort even to detain with force. *327We think the judgment should be reversed, and a new trial granted.

Per Curiam. Judgment reversed.