State v. . Marsh

64 N.C. 378

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Dick, J.

In contemplation of law, it is not a civil injury, or a public wrong, for one tenant in common,- or his agent, to withhold the common property from the possession of his co-tenant. They have a mutual right of possession, and if this right is denied, the party excluded has a simple and speedy remedy, by a severance of the co-tenancy.

In this case, one of the co-tenants authorized the defen dant to take the cotton into his possession, and the subsequent detainer of it from tbe prosecutrix, even if it was with force, was not an indictable offence.

It is doubtful whether a forcible detainer of land is indictable at common law, when tbe entry was peaceable; but it is certain that tbe doctrine of forcible detainer has never been extended to personal property.

His Honor erred in bis instructions to tbe jury, and there must be a venire ele novo. Let this be certified.

Peb Curiam. Venire ele novo.