
    WESTMORELAND COUNTY.
    September Term, 1792.
    Pennsylvania v. Samuel Waddle.
    
      WADDLE was indicted for a forcible entry and detainer, on 2d June, 1790, of a messuage, &c. in Derry township, in possession of Andrew Johnson.
    
    Ross, for the prosecutor,
    called a witness, to prove that the defendant was within the lines of the prosecutor’s claim.
    
      Woods and Young, for the defendant,
    objected to this testimony, till proof should be made, that the prosecutor had been in actual possession of the premises.
    
      1 Hawk. 280 § 23, 290. § 53.
    
    1 Hawk 290, § 54.
    1 Hawk 288, § 46.
    
      2 Burns 179.
    
      2 Bac. abr. 558
    
   President.

It is said, that if a man be in posession ever so long by virtue of a defeasible title, and continue, after a claim by him, who has the right of entry, it is a new entry ; and if, after that, he hold by force, it is a forcible detainer. I should be disposed to construe a defeasible title to mean a tenancy at will, or such, as, by the mere entry of the owner, may be defeated. It is also said, that the three years possession must be of a lawful estate; yet I doubt whether an entry or claim of one, not having the right of entry, would defeat the protection of three years peaceable possession. And it may be said, that, if a forcible detainer be an offence, even after a peaceable entry, it matters not, whether, at the time of the entry, there was an adverse possession, or not. But it is expressly stated, that it is only an actual possession, and not a legal possession, in the prosecutor, that will warrant restitution to him. On the whole, we think it safest to say, that actual possession ought to be proved in the prosecutor.

There was then evidence and argument on both sides.

President. There are two points to be established, to found a conviction.

1. Possession of the prosecutor ; and

2. Force by the defendant.

1. As to possession : it does not appear, that Johnson had possession till after Waddle was in possession, and after the force alledged. If he had no possession before the force alledged, the defendant cannot be guilty.

2. If there was no force, he cannot be guilty. Words are the slightest symptoms of force. If you think it was the meaning and tendency of the words, to impress on Johnson a terror of personal harm, if he should proceed to take possession ; this is force. If you think their meaning was only to signify that Waddle would not give up his claim, which he thought a just one, till by a legal trial, it was declared unjust ; this is not force: and whatever might be the possession, the defendant must be acquitted. One of the witnesses understood it in this sense.

The jury found the defendant guilty : stating that they found force in the detainer only, not in the entry ; and that they considered Johnson in possession from the commencement of his title, which was a sale by the commissioners.

A new trial was moved for, and granted, on the ground, that there was not evidence of possession previous to the supposed force.

At the second trial, at December Sessions, 1792, the case appeared as before. It was stated to the jury, that there was no proof of possession, and, therefore, that the defendant ought to be acquitted.

The defendant was acquitted.  