Warburton v. Doble

Rhodes, J., delivered the opinion of the Court: The Court did not err in striking out certain portions of the answer. The denial, that the plaintiff owned the buildings on the premises in controversy, does not raise an issue [620]that can be tried in an action of forcible entry and detainer. The new matter pleaded by the defendant, in respect to the lease of the premises to the plaintiff, its expiration, and the subsequent forcible and fraudulent entry and detainer by the plaintiff, his attempt to place other persons in possession, and the claim of the defendant against the plaintiff for the rent of the premises, do not constitute a defense to the action. A set-off or counter claim is not admissible in actions of this class, and it makes no difference whether it be a demand for money, or a previous forcible entry of the plaintiff.

The Court erred, in our opinion, in instructing the jury that ‘the actual possession being admitted, the presumption is that it was peaceable, unless the contrary appear. ” Section 9 of the Act of 1866 (Statutes 1865-6, p. 770), provides that the plaintiff shall be required to show that he was “peaceably in the actual possession at the time of the forcible entry. ” If peaceable possession is to be presumed from actual possession, he would be required only to show his actual possession, for a party is not required to prove a presumption of law. But actual possession is not necessarily peaceable possession, and the plaintiff must show, as a fact, that his possession was peaceable.

The important question in the case is whether the defendant was entitled to prove that the buildings which, were destroyed by him were his own property. The evidence was offered, not for the purpose of showing that the plaintiff had no title, or was hot rightfully in possession, but only in reduction of the damages. Ho authorities are cited upon either side of the question. The Court below, in sustaining the objections to the evidence, held that the real questions in the case were : “ Was the plaintiff in possession? Did the defendant go in and oust him ? Did he do any damage? If so, what? ” In view of the offer made, one question was stated too broadly. It should have been : “ Did he do the plaintiff any damage ? ” It is provided by Section 12 of the Act of 1866, that the Court or jury shall find or assess “ the damages occasioned to the plaintiff by such forcible entry or forcible detainer.” The elements composing the damages [621]