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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
The appellee brought his writ of forcible detainer, and there was judgment against him before the justice of the peace. He appealed to the Circuit Court of Baldwin county. Judgment was there rendered for him, and McDonald appealed to this court.
Crawford and Hitchcock, for appellant; Elliott, for appellee.
LIPSCOMB, J.It is assigned as error that the complaint shows that the complainant had no estate in the land claimed. The only part of the complaint brought into view by this assignment is in these words: “Your petitioner is tenant at will on the said land, of the United States.” By that statute, the claimant is required to set forth his estate in the land forcibly entered or detained from his possession. The term estate embraces the interest of tenants at will as well as other tenants. It is contended, on the authority of a case decided in Pennsylvania, that a tenant at will is not entitled to this remedy. In the English statutes an inquisition of forcible detainer could not be supported when the estate claimed was not greater than this; but the proceedings by inquisition were partly criminaliter to publish for the trespass, and partly civiliter to recover possession. Our statute expressly includes within its provisions all estates, whether freehold or less than freehold. When the expressions of a statute are positive and explicit, and the meaning obvious, cases decided under different statutes by other courts, however respectable, are entitled to but little weight.
It is the unanimous opinion of the court that the judgment of the Circuit Court be affirmed.
Note First.In this case a point of law was insisted on for the plaintiff in error, which the court conceived was not embraced by the assignments of errors. It was taken into consideration for the purposes of settling the practice.
It was insisted that the trial before the Circuit Court should have been de novo. The majority of the court were of opinion that it should have been on the record sent up by the justice of the peace, and without the intervention of a jury.
Second.On a motion in this case the court ruled that after argument, a certiorari, the object of which was to reverse the judgment of the court below, would not be awarded, but that it would be granted at any time to sustain such judgment.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 98-99.
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