People v. Brown , 1 Cole. & Cai. Cas. 284 ( 1803 )

Lewis, Ch. J.

delivered the opinion of the court. *To decide the question in this case it is necessary [*426] to inquire whether an information of intrusion lies under the circumstances detailed. To sustain a prosecution of this description it is necessary that the crown formerly, and the government now, should he in the actual seisin or possession of the subject intruded on. I shall lay down a few general principles or maxims, which I conceive incontrovertible, and which may be gathered from the two principal cases, relied on, that of Sir Moyle Finch, and of Sir George Reynel, as well as from the decision of the court for the correction of errors, in the case of The Devisees of Van Schaick v. King, Cro. Eliz. 220; 2 Lev. 134; 9 Rep. 95, a.

1st. That the state can acquire seisin or possession of lands, for breach of condition, by matter of record only.

2d. That generally, where entry is necessary in the case of a common person, an office is necessary to entitle the ttate.

3d. Where entry and action are necessary to a common person an office and sci. fa. are necessary to the state. 9 Rep. 95, b.

It is true, there are cases where the crown may be in possession by seizure without office, but they are not cases of this description; they are confined to the forfeitures of the temporality of alien ecclesiastics, where the certainty of the matter appears in the exchequer.

There is an important and striking distinction between the case of Sir Moyle Finch and the one now before us. The forfeiture there was of a term; here, if any, of fee; now a fee shall never be void absolutely, for condition broken ; but voidable by entry only, though it is otherwise of a term. But even in Finch's Case, as reported by Leonard, who states it much more at large than Coke, both Popham and Coke, who argued for the plaintiff, and Manwood, Ch. B. in giving judgment for the plaintiff, admitted that, although the lease was void without office, it was void in' interest and property only, but not in possession. And -that though the queen without office, and a common person Avithout -entry, might grant it over, yet the former could not without office prosecute for .an intrusion, .nor the latter without entry for a trespass.

These opinions, we think, decide the question; and that judgment must be accordingly .for the defendants.

Judgment for the defendants.