Respublica v. Shryber et al.

* Respublica v. Shryber et al. Forcible entry and detainer. Requisites of an indictment for forcible entry and detainer. An immaterial and inconsistent averment may be rejected as surplusage. The defendant cannot give evidence of title, to prevent restitution. 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 Hen. VI, c. 9. 1 Burns’ Just. 411, § 3. And McKean, 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, Same Cause. lewis moved in arrest of judgment, on two grounds : 1. For that the indictment stated, “that the prosecutor was seised in. his demesne as of fee,” without saying when he was seised ; so that it might be he was seised at the time of the indictment found, and not at the time of the forcible entry. 2. For that the indictment stated, “that he was seised in his demesne as of fee,” and “ his peaceable possession thereof as aforesaid con-tinned until, &c.,” which is repugnant and inconsistent, inasmuch as he could not be both seised and possessed at the same time. See Pennsylvania v. Leech, Addis. 352. In Respublica v. Devore, 1 Yeates 501, the prosecutor was admitted to prove the force merely. [MAJORITY — But the Court] But the Court overruled both objections: And McKean, C. J., said, that the words, “ his peaceable possession thereof as aforesaid,” were surplusage, and ought to be rejected, See Pitch v. Rempublicam, 3 Yeates 49; s. c. 4 Dall. 212. Burd v. Commonwealth, 6 S. & R. 252. Dean v. Commonwealth, 3 Id. 418. Respublica v. Campbell, post, 354, Co. Litt. 303, n.