7 Ky. 312 | Ky. Ct. App. | 1816
Morris sued out from a justice of the peace a warrant for a
Whether, therefore, that court erred in the instructions given to the jury, is the first question presented for the determination of this court.
In the consideration of this question We have been Unable to find any authority calculated in any satisfactory degree to elucidate the subject. But considering it on principle, we are inclined to the Opinion the instructions ought not to have been given. We suppose the legislature, by allowing the party to bring the cause before the circuit court by traverse, must have designed the trial should be had in that court uninfluenced by the inquest, and subject to those rules which are applicable to the trial of issues in ordinary cases : and if so, as Morris clearly held the affirmative of the issue, a verdict should not have been found for him without the production of evidence on his port.
If then we aye correct in supposing the instructions to be erroneous, the irregularity cannot be cured by the further suggestion upon the record of what evidence was thereafter produced: for as the jury may have been influenced by those instructions in finding their verdict, to avoid an injury which might otherwise accrue to Beauchamp, the verdict and judgment against him should not be permitted to stand.
It appears also from the record that Beauchamp was precluded by the court from introducing as evidence to the jury a patent under winch he claimed title to the land. Whether the patent ought to have been received, as the cause must be reversed on the preceding ground, is a question not material in the present case; but as a similar question may again occur on the return of the cause to the court below, it may be proper to observe, that in a proceeding under the statute against forcible entries, the right of entry is not properly the subj ect of inquiry, but Whether there was a forcible entry upon the possession
The judgment must be reversed with costs, and the cause remandad to the court below for new proceedings not inconsistent with this opinion.