
    WESTMORELAND COUNTY.
    December Term, 1791.
    Pennsylvania, v. William Robison and Andrew Robison.
    AN indictment for a forcible entry and detainer of lands of Ralph Cherry was found and tried in the Quarter Sessions.
    
      Brackenridge and Ross, for the defendant, objected to Cherry the prosecutor as an incompetent witness to prove the possession. Ex necessitate rei, a prosecutor is admitted to prove the force; but possession is a notorious fact, which may be proved by other witnesses.
    2 Comm. 195-9.
    Galbraith, Woods, and Young, for the prosecutor,
    declined taking up time to answer the objection, and called other witnesses to prove the possession.
    The counsel for the defendants made three points.-
    1. Was Cherry in possession ?
    2. Was Robison’s entry forcible ? and
    3. Was it within three years before the indictment.
    1. The same possession, which is protected from a forcible entry, would support an ejectment. A possession of twenty years bars the one, of three years, the other. One may have the possession; another, the right of possession ; a third, the right. Possession is enough against a wrong doer. In the case of the State, v. Hughes, in a court of Oyer and Terminer in this county, an indictment for a forcible entry on the possession of Powel, it was proved that Hughes, the defendant, had built his cabbin within an hundred yards from Powel’s.
    
    The Chief Justice held, that no forcible entry could be made on wood land; and Hughes was acquitted. Such a possession as Cherry had would not have entitled him to a recovery in ejectment ; and it is not such as a forcible entry could be committed on.
    2. and 3. There was no force in the entry; and, if there was, William Robison has since been more than three years in possession ; and, on every ground, there must be a verdict of acquittal.
   President. The possession may be in one, the right of possession in another, and the right in a third. One who has entered forcibly may have the possession, without either the right, or the right of possession, and if he die, and transmit the possession to his heir, he transmits more than he had, for the new possessor has also the right of possession, though without the right. Or, in another way, one, who has a patent for land, has the right; his lessee has the right of possession; and one, who illegally ousts him, has the possession. In ejectment, the right, and the right of possession come in question. In an indictment for a forcible entry, neither comes in question, but the possession only and the force. If one having the right, or right of possession, may support an ejectment, it follows not, that he may enter by force, or that no less possession than a rightful one, or such as would support an ejectment, is protected from a forcible entry. For, whatever right, either of property or possession, the man who makes the entry may have, he must not commit a crime in exerting it; and he commits a crime, punishable by indictment, if he enter with force, on a person having no right, not even of possession ; and in resentment of the crime, his right, whatever it may be, though both of property and possession, is set aside unregarded by the law, and the person forcibly dispossessed, though having neither the right, nor the right of possession, is taken under the protection of the law, and restored to that possession, of which he was forcibly deprived. This is done even against a man with both the right and the right of possession, who, if he had entered peaceably, or demanded it by action, would have attained the possession, and been secured in it.

Dent v. Savage. 2 Str. 1064.

2 Burns. 179. 2 Bac. Abr. 558.

A man having both the right, and the right of possession, is barred in the possessory action of ejectment, unless he can prove a possession within twenty years. And a man who has not even the right of possession, in any sense, and has obtained possession by violence, against all right, will not be dispossessed by indictment, if he has been three years in peaceable possession : for three years is a bar to restitution in this way.

But the comparison of forcible entry, with ejectment, neither elucidates the subject, nor supports the cause of the defendants. For though possession be of so light a nature, that, when it comes in competition with title, in a legal discussion in ejectment, it will not stand ; it may be a sufficient occupancy, exercise of ownership, use, or enjoyment, which will be protected against force. The interruption of this possession by violence is made a crime, to be redressed by indictment. And any argument from possession being sufficient against a wrong doer, is against the defendants. Very light evidence of possession, as a barrel of beer left in a cellar, has been sufficient in ejectment, to set aside proceedings, as on a vacant tenement. And yet having cattle on the land has been held not a sufficient possession to be protected against a forcible entry, by one having the right. But the ground of this seems to be, that the crime lies in the force or fear of some human being. Though imp rovement be no evidence of title, and has therefore failed against title, in ejectment, it may be evidence of possession, to be protected in a forcible entry. It is not the degree or quantity of possession, that constitutes the right of possession, but the manner, in which the possession was obtained ; and a possessor, without the right of possession, may be as completely possessed, as one who unites in himself possession, right of possession, and right, and is equally protected against a forcible entry ; though he would not recover, or would be turned out in an ejectment.

There must be some evidence of possession. But I cannot think, that the case of the State v. Hughes, has been fully stated. A man cannot stand on every part of his land ; he cannot build houses, and settle tenants on every acre of it; he cannot plough every corner of it, nor make a fence round the whole. Binding the inhabitants of this country to rules so strict, and protecting, from forcible entries, only lands so possessed, would be very inconvenient, and would, in a great measure, if not entirely, elude the law; especially in those cases, for which chiefly the laws were made, of poor people, least able to circumscribe their survey on a legal title, to build, plough, or fence. Therefore, if a man, in any manner, circumscribe for himself a reasonable possession, within such bounds, as are usually allowed ; sit down, on one part of it; build, in such manner as is convenient ;- plough and fence, as may suit his interest, inclination, and ability ; and use the residue of his known and reasonable claim, as other men of like condition use their lands; he will be considered as in such possession of the whole, that a forcible entry into any one part will be punished by there statutes.

2. As to the force in the entry, &c. there must be at least, such acts of violence, or such threats, menaces, signs, or gestures, as may give ground to apprehend personal injury or danger, in standing in defence of the possession.

3. I cannot see how, on the plea of not guilty, you should acquit the defendants, because the forcible entry has been (if it have been) followed by three years peaceable possession. If the entry was forcible it was a crime; and you must say whether the defendants are guilty or not. Three years peaceable possession bars the remedy of restitution ; but does it justify the offence ? If the defendants would use this, to prevent the award of restitution, it must come before the court in pleading or in some such way, as that it may be put on the record, and not exist only in the evidence. 
      
       The place in dispute was a remarkable spot, known by the same of “The Indian Fort," of extraordinary rich ground, about forty perches from the cabbin built by the first settler, (from whom Cherry derived his claim), the trees on it were deadened by him at his first settlement, and ever since known to be within his claim.
     