Mitchell v. Hagood

The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.

The Court below was right in striking out the two defences, for which error is here assigned.

1. The writ of restitution, obtained by the defendants in an action of forcible entry and detainer, does not determine the right of property, or the right of possession. It simply decides a restoration to immediate possession, which has been taken away by an illegal and unwarranted ouster, tending to produce a breach of the peace.

2. That the parties in possession of a gold mine, and working it, are foreigners and without license, affords no apology to .trespassers. Foreigners, who are bona fide residents, are entitled to the same rights of property, under the Constitution of this State, as native born citizens.

. It is true that the law prohibits foreigners from taking gold out of the mines of this State without first obtaining a license. But this law must be enforced by the State, through her appointed officers; and the mode and manner of enforcing it are regulated by the provisions of the statute. It is not left to interested volunteers to execute the law according to their crude notions ; nor upon any such plea to disturb, or seize upon, the quiet possession of others, for their own benefit.

Judgment affirmed.