Respublica v. Shryber

by Supreme Court of the United States

Respublica versus Shryber et al.

Forcible entry.—In this case it was resolved, on solemn argument, that title could not be given in evidence by the defendant to prevent restitution. 8. H. 6 ch. 9. 1 Burns Just. 411. sec. 3.

And M’Kean C. J. ruled that the wife of the prosecutor might be examined as a witness to prove the force, but only the force; for, otherwise, the statutes might be eluded in some cases.

The same Cause,

Lewis moved in arrest of judgment, on two grounds: 1st. For that the indictment stated, “that the prosecutor was seized in his demense as of fee,” without saying when he was seized; so that it might be he was seized at the time of the indictment found, and not at the time of the forcible entry.—2d. For that the indictment stated “that he was seized in his demesne as of fee,” and “his peaceable possession thereof as aforesaid continued until &c.” which is repugnant and inconsistent, in as much as he could not be both seized and possessed at the same time.

But the Court over-ruled both objections: And M’Kean C. J. said, that the words, “his peaceable possession thereof as aforesaid,” were surplusage and ought to be rejected.^[1]

1. See 1 Inst. 303. 4.