Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1871-03-31
best judgment, on the evidence which has
been adduced before YOU,

possession of dwelling house, situated il
| Hallowell, and had been in peaceable posses
sion for some twenty-five years. That wa:
| plaintiffs dwelling house Their possession
should not be disturbed unless the defendan,
had legal right so to do. A dwelling house
has always been considered in common Law
| "a portion of which we have inherited from
our ancestors) as the castle of the in-dwell-
ers. In England even the King upon his
throne cannot enter, without process of law,
the cottage of one Of his humblest subjects.
SO are they protected.
1t appears here that on the ninth of De.
cember, 1869, the female plaintiff being in
possession Of this house, the defendant under
took to enter. Had he a right so to do? And
that is the question That he did enter there
is no controversy. Had he the legal right on
the ninth of December to make that entry,
and retain possession? The writ contains
three counts, and has been read to you. The
first count alleges trespass by breaking and
entering what the plaintiffs claim as their
premises. After the evidence was out on the
part of the plaintiff, intmated to the coun-
sci and ruled that upon that count the plain
tiff was not entitled to recover; and, without
going into the reasons, which have been well
commented upon by the defendants counsel,
| instruct you that you may lay that count en-
tiltiy Out VI lilt Cdbe now cOTslueT the
two other counts which are the second and
third in the declaration:
They substantially allege, one, the action
of trespass for injury done to plaintiffs prop
erty, and by converting it to the use of the
defendant. That is TO say, interfered with
her property without authority and converted
1t to his own use. The third count is tor a
trespass and assault upon the female plaintiff,
and injury done to her personally, by which
it is alleged she suffered great indignties, and
was agitated, which caused sickness to sue
coed, and that she was sick and confined to
her bed period of time, and has not really
up to the present time recovered.
Now, gentlemen, the plaintiff being in pos
session, was the defendant justified in thus in
vadlng those premises and taking possession
in the manner which the defendant has detail
cd TO you upon the stand? 1t has been con-
tended here that at the time OF this entry
whether forcible or otherwise the defendant
was the legal owner of that property, and be-
ing the legal owner it was contended, after
having given the thirty days notice required
by the Statute. whatever may have been the
possession of the plaintiff it was to he terlni-
mated In as much as the defendant was the Ie-
gal owner; and therefore, he had right, il
was contendcd, TO enter in the manner which
he has described and expel the female plain
tiff and the inmates from that hose. That
is not the mode prescribed by our law. Ger
tain authorities have been ntroduc ed-de els
ions in Massachusetts, and it would seem at
ore time that there was such law in Massa-
chusetts although the decisions, looking thro'
the whole of their opinions, would BE- some
what conflicting upon this subject. That law
was originally basedupon the old English doc
trine, which has since been repudiated. 1t
u Ia from fha 1nt Of
chusetts which has been cited, that in order to
nullify those decisions and save trouble and
confusion which occurred in consequence of
them, they have since enacted new statute
BY which no p>rson is authorized now, where
person is in peaceful possession Of premis-
es, to iorcibly enter, but il must be under
a certain process. You see the conseq uences
which must invariably follow, particularly
where the title of property is in controversy.
Who knows who has the better title to property
when even the notice to quit has been served !?
The foreman for instance may serve his notice
on his neighbor 10 quit his (neighbor's) prem
ises within thirty days Is he obliged to do
it, or can he remain and defend his premises
against any person who shall undertake to
enter his house in violent manner: He
would have the right to defend his premises
with any force necessary to protect himself
and the inmates of his house, even to the en-
tent of shedding blood if it became absolute
ly necessary for that purpose. There nlust-be
one general rule which applies to all these
cases whether man in possession is rghttul
ly under a legal title, or is there when the IL
tie is in some other person. There is a mode
pointed out by the statutes by which that title
can be legally tried. 1t is not pointed out
that a man can 90 and expel an individual
when that individual by the common law has
right to defend his premises. You see at
once what a conflict there would be in the
community. Blood might be shed in various
instances which you could imagine. The law
points out very simple process Of reaching
tenants of suffrage.
Here the Court gave the mode of proceed
ing in a case Of ejectment.
That is the course which this defendant
should have taken. 1t would have saved all
the conflict between these parties, and if any
one living out Of the State has given advice
contrary it must have been under laws which
do not control the people of Maine.
1t is contended that the defendant entered
peacefully into this house, and being so in
possession that he had right to keep posses
sion, and to eXpel the inmates. There is no
controversy that if he had obtained peaceful
possession that he had a right to remain
there, the property being his at the time.
But what was the nature Of his possession?
Did he go there for the purpose OF deception p
merely TO call as friend on a visit, or did he
go there with the intention of, after having
made such an entry, 10 torcibly eXpel the in
mates? If that was his design, then that en-
try would not be recognized, in law, 10 give
him peaceable possession. He must have
entered and taken peaceable possession, and
if he had done that he would have had con-
troll of those premises-not otherwise. SO
that you will settle whether he had such
peaceabe possession by that entry, as justi
fed him in holding possession, and finally ex-
pelling the inmates. Ifyou find that he had
not, then gentlemen, the next question will
be, what was his conduct after he entered in
the manner before alluded to? Did he enter
IN an arbitrary manner? Did he commit
acts there which were unjustifables Ii
he had entered peaceably he might have
indeed them to remove, without any I'M
friendly act. If he resorted to means of
starving or freezing, or any great indgnity
which caused so much suffering as to compel
them to leave, it would be unj ustflable. You
have heard the evidence, gentlemen, in rela-
ton to the conduct after this entry was made,
and was there, as alleged in these two