Barnes against Dean, 5 Watts 543

Per Curiam. The matter for consideration is, the propriety of the direction that the owner of the freehold may not cut or carry away the grain or grass of one in wrongful possession. The error of this is palpable. At the common law, an entry by force was justifiable both civilly and criminally, with the single qualification that wanton violence were not used.

The owner was not at liberty to beat the intruder; but he might overcome resistance by force, or, as the law expresses it, “ gently lay hands on him.” But no degree of violence to objects that are a part of the freehold, could make him answerable by indictment or action. The frequency of actual collision from this, induced the legislature to interfere for the preservation of the public peace, but not for the disturbance of private rights. The statutes of forcible entry, declare many things criminal in relation to the public, that are entirely justifiable betwixt the parties; and this is one of them.

That the common law remains the same as to remedy by action, is shown by the pleadings. The parties have put the question exclusively on the defendant’s title to the freehold; and it was error to lead the jury to a decision of it on any thing else. Judgment reversed, and a venire de novo awarded.