State v. Covenhoven

6 N.J.L. 482

• Court: Supreme Court of New Jersey
• Decided: September 15, 1797
• Status: Published

Opinion

Kinsey, 0. J.,

delivered the opinion of the court. This inquisition appears to have been taken on the 26th of May, 1794, and charges, that Samuel Vantine was seized in fee and peaceably possessed of a messuage, and continued so seized until the 1st of April, 1793, when William Oovenhoven, with a strong hand, &c. To this the defendant pleads, (as before stated) to which plea a special demurrer has been filed, -stating, as causes of demurrer, that it contains no answer to the inquisition ; that it is double, insensible and argumentative; that the traverse is immaterial ; and that no proper issue can be joined thereon. The defendant has joined in demurrer, and the question is, as to the goodness and sufficiency of the plea.

Before we come directly to the consideration of the principal question, it may be proper to remark, that the statutes against forcible entry, aggregately considered, have several objects in view; to preserve the public peace, by preventing these private outrages, and to give a speedy remedy to the person whose individual rights have been violated, and in whose person the general peace had been infringed. There can be no doubt, therefore, we think, that the forcible entry may be denied, and the defendant may, at the same time, avail himself of his three years’ quiet possession. The one puts in issue the fact denied, the other precludes the necessity for any investigation into it. Both defences may therefore be embraced within one plea, but it seems that one of them, to prevent a charge of duplicity, should be done by way of protestando, as in the case of Rex v. Edwards, 1 Tremaine’s Pleas 192.

Another observation may here be made, in answer to what was dropped by one of the counsel, on the argument. It was said, that on a special demurrer, no objection can be taken which is not particularly specified in the demurrer, and, therefore, that the prosecution is precluded from urging some of the objections which have been made. The observation, so far as it relates to formal defects, is correct, and warranted by the statute, but defects of substance may be taken advantage of at any time.

With regard to the principal question before us, much light may be obtained from the case before cited, of Rex v. Edwards. The inquisition was found the 15th of March, 1648, and charged, that “ Robert Edwards and Catharine his wife, on the 10th of February, 1644, with force,” &c. The defendants pleaded, by way of protestation, that they did not enter; and then, to prevent restitution, that one William Rogers, on the 10th of August, 1632, being seized in fee, leased the premises to the defendant and his assigns for ninety-nine years if, &c., under which lease defendant entered on the same day, and was possessed thereof, for three years together next before the indictment found, &c. To this plea a replication is filed by the prosecutors, in their own names, who, by protestation, deny the seizin and lease, &c., and issue is joined on the possession of defendant.

Upon this case it may bo observed, that possession is pleaded, not directly to the inquisition, but to bar restitution, and to this effect only is it available. In the case before the court, it is pleaded in bar of the action; it is held up as an answer to the indictment, to which, properly speaking, it is no plea.

Another thing is to be remarked in that case, which is, that the restriction seems a mere civil right, and the crown did not reply to the plea in bar of it. This belongs to the party injured, who may make himself at once a party to the record, and file the replication in his own name. This confirms, if confirmation is necessary, the idea that it is no bar to the inquisition.

Two of the cases which have been cited in support of the demurrer, appear to me conclusive against the plea. In The King v. Burgess, the defendant pleaded that I. S. was tenant for life; that he was in possession three years before the indictment found; and that the defendants, as his servants, entered. On demurrer to this plea, it was held ill, because it was not alleged that the defendants were in possession for three years. (See King v. Harris, 1 Salk. 260; 4 Com. Dig. 212.)

In this case it is pleaded, that the Sneidekers, by their agents, one of whom the defendant is, had the possession for eight years, which may be true, though he had been in possession but a single hour, and this is pleaded in bar of the inquisition, and not merely to prevent restitution. We consider the case that has been cited as establishing the principle, that a servant cannot avail himself of the three years’ possession of the master. The statute gives the person thus possessed, the right of availing himself of it, but gives it to no other person. We consider, therefore, that the fact alleged in this plea, of a possession in the Sneidekers, is altogether foreign to the issue between these parties, and perfectly immaterial on the present question.

Should there, however, exist any doubts upon this point, there is another objection to this plea, furnished by the case in Lord Raymond, which is decisive of the question; I allude to the plea of a possession for eight years, instead of three, which is pointed out by the statute. When the point was first broached, my mind had a different inclination; I thought, as it appears from the case referred to, that Raymond argued, and the court thought on the first argument, that the largeness of the plea, and the time, was for the benefit of the plaintiff, as appears in 6 Mod. 240. On consideration, however, I have seen reason to alter my mind, as the court, in that case, appears to have done; and I agree with them, that such a plea holds up an immaterial issue, and that the prosecutor could not file a proper replication to it. As the court are reported (2 Salk. 423) to have said, in that case, if it be considered as at common law, there is no such plea; if on the statute, the act is not pursued, and the plaintiff could not take issue on it, for the issue is immaterial, the jury might find him not guilty infra quatuor annos, but guilty infra sex annos. Such a plea is, at best, but argumentative, and it is better that the plea of the statute should be precise and direct. 11 Mod. 38, S. C.

In the cases that have been cited from Tremaine’s Tleas and Sir Thomas Raymond, the plea was, a possession of three years, though, in the first case, it is evident that the possession was, at least, six years. This is confirmatory of the opinion that has been stated.

This plea is therefore defective, yet I confess that I do not like to give more weight to exceptions of this nature than I am compelled to, and I felt a strong inclination to give liberty to amend it. But I do not recollect any case of this description in which this has been done, and I do not therefore feel myself authorized to order an amendment. Judgment must therefore bo in favor of the demurrer.

Judgment for demurrant.