
    Margaret DeLagal, plaintiff in error, vs. W. J. Wallace, administrator, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Forcible Entry — Warrant.—A warrant for forcible entry only, which shows upon the face that the entry was more than three years before the issuing of the warrant, and which contains no allegation or charge of forcible detainer, is demurrable as insufficient in law, and should be dismissed on motion, since the statute, in terms, provides that in no case shall the person in possession be turned out, if he has been three years in peaceable possession of the premises.
    Forcible entry. Before Judge Sceirey. McIntosh Superior Court. November Adjourned Term, 1872.
    On January 15th, 1870, there came on for trial, before W. T. Thorpe, Esq., a Justice of the Peace for the twenty-second *district, the case of W. J. Wallace, administrator, vs. Margaret DeLagal, upon the following warrant:
    “STATE OF GEORGIA — McIntosei County:
    
      "To Margaret DeLagal:
    
    “Whereas, on the 4th day of January, instant, W. J. Wallace, administrator, appeared before the undersigned and made oath that on or about the 1st day of January, 1867, you, the said Margaret DeLagal, did forcibly enter into two tracts or parcels of land * * * and violently, and without authority of law, took possession of said land, the same being the property of the heirs of Bright B. Harris, deceased, with mehace, force and arms, and that you, the said Margaret DeLagal, still keep and retain possession of said lands, contrary to the láws of said State, the good order, peace and dignity thereof: Wherefore you are required to appear, etc.
    “Witness my hand and official .signature this 4th day of January, 1870.
    (Signed) “W. T. Thorpe, J. P.” [R.s.]”
    When the case was called for trial, the defendant moved to dismiss the warrant, because it showed upon its face that the defendant had been for three years in peaceable possession of the property in .dispute. The motion was overruled and the defendant excepted.
    The jury awarded the premises to the plaintiff. The defendant carried the case, by writ of certiorari, to the Superior Court, upon the above ground of exception. The Superior Court sustained the judgment of the magistrate, and the plaintiff in certiorari excepted.
    W. B. Gaurden ; George S. Thomas, for plaintiff in error.
    No appearance for defendant.
   *McCay, Judge.

The record of this case is somewhat confused, but it plainly appears that the affidavit and the warrant both only claimed a “forcible entry,” and that both of them stated this forcible entry to have taken place more than three years previous to the issuing of the writ. Not a word is said of any “forcible detainer.” On the trial before the magistrate, the defendant moved, in the first instance, to dismiss the writ, because it appeared that the forcible entry charged took place more than three years, etc. -The Court refused to dismiss, and required him to show that the entry did take place more than three years, etc. We think this was a fundamental error. The writ of forcible entry is a harsh process — a summary proceeding, and it ought, on its face, to make a case within the law. The statute says, in terms, that no one shall be dispossessed by this proceeding who has been three years in peaceable possession. In this case, the writ itself shows that the forcible entry does not come within the cases in which the magistrate may dispossess. Had there been in the writ any complaint of forcible detainer, it might have stood, but the statements of the writ are entirely consistent with a peaceful detention after the entry, more than three years before. It appears, too, by the proof, that the entry was under contract. Forcible detainer was the remedy, or both.

We think there was error in not sustaining the certiorari.

Judgment reversed.  