McDonald v. Gayle , 1 Minor 98 ( 1822 )

Opinion of the Court by

Judge Lipscomb.

It is assignéd as Error that the complaint shews that the-complainant had no estate in the land claimed. The only part of the complaint brought into view by this assignment is in these words: “ Your petitioner is tenant at will on the “ said land, of the United States.” By the Statute, ^(a) the claimant is required to set forth his estate in the land forcibly tered or detained from his possession. The term estate embraces the interest of tenants at will as well as other tenants. It is contended, on the authority of a case decided in Pennsylvania, (1 Dallas. 354) that a tenant at will is not entittled "to this remedy. In the English Statutes an Inquisition of forcible detainer could not be supported when the estate •claimed was not greater than this; but the proceedings by Inquisition were partly criminaliter to punish for-the trespass, and partly civiliter to recover possession. Our Statute expressly includes within its provisions all estates, whether freehold or less than freehold. ^(b) When the expressions of a Statute are positive and explicit, and the meaning obvious, cases decided under different Statutes by other Courts, however respectable, ai-e entitled to but little Weight. It is the unanimous opinion of the Court that the judgment of the Circuit Court be affirmed.

Crawford and Hitchcock for appellant. Elliott for appellee.

Note 1st.—In this case a point of law was insisted on for the plaintiff in Error, which the Court conceived was not •embraced by the assignments of Errors. It was taken into consideration for the purpose of settling the practice.

It was insisted that the trial before the Circuit Court should have been de novo. The majority of the Court were ■of opinion that it should have been on the Record sent up by the Justice of the Peace, and without the intervention Qf a Jury. n _

_ 2d.—On a motion in this case, the Court ruled that argument a certiorari, the object of which was to reverse the judgment of the Court below, would not be awarded, but that it would be granted at] any time to sustain such judgment.

(a) Laws of Ala. p. 371, s. 7.

(b) Laws of Ala. sect. 4.