in such entry. Sampson v. Henry, 13 Pick. (Mass.) 36.

A lessee is entitled to possession of the premises leased, and if the lessor forcibly enter and eject him, the lessor is guilty of a forcible entry and detainer under the Missouri Rev. Code of 1835, 280. Michau v. Wilcox, 6 Mo. 346.

A party who participates in the forcible entry upon the lot in the peaceable possession of another is guilty at the same moment of the detainer, and if he continue to support and assist the party entering, in remaining upon the lot, he continues the detainer, and may be properly joined as a defendant in the action for the forcible entry and detainer. menthal v. Waugh, 33 Mo. 181.

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Collusion with Tenant.-A proceeding for forcible entry and detainer does not lie against one whose entry was peaceable and without collusion with a tenant. Farmer. Hunter, 45 Mich. 337.

A, having been in possession of land, put B in possession, to keep the same as agent for himself. B delivered the possession to C, without the fraud of C or any knowledge that B acted beyond his right. Held, that forcible entry and detainer could not lie by A against C. Moore v. Agee, 7 Mo. 289.

Taking Surrounding Land.-An action, of forcible entry and detainer will lie for taking actual possession of a belt of land entirely surrounding a lot occupied by the plaintiff and enclosing said belt by a fence. Gass v. Newman, 1 Head. (Tenn.) 136.

Part of Railroad Bridge.-The stringers of Cataract Bridge rested one end on an abutment in the city of Saco, the other on a pier in which plaintiffs' railroad and the city had each an interest, but which the plaintiffs were bound to maintain, To these stringers beams were fastened and projected at right angles beyond the sides of the bridge. On these beams outside of the limits of the highway, and over the east branch of the Saco river, and over land in which the plaintiffs had no interest, the defendant built, by permis sion of the city, a shop. Held, that the railroad could not maintain the process of forcible entry and detainer against the defendant for a part of their bridge. Bos

ton & M. R. R. Co. v. Durgin, 67 Me. 263.

False Affidavit.-Where a landlord proceeds to remove his tenant for holding over, under Ga. Code sec. 4077, and his affidavit upon which the arrest issued is false, an indictment will not lie for forcible entry. The crime is perjury. Sewell v. State, Ga. 496.

Where Boundary is in Question.One who bought the land of one of two adjoining landowners pending a question between them as to their boundary, held, bound under the circumstances by the true line, and not entitled to maintain forcible entry and detainer against the other owner for moving the division fence to correspond with the true line, as agreed on between the two before the sale, although he thereby enclosed a part of the land apparently included in plaintiff's purchase. Cramer v. Stethem, I Mo. App. 144.

Entry Under Contract to Repair.When one receives the key to a house in order that he may make repairs therein, and is in possession and at work on the repairs in obedience to express directions, and using reasonable diligence to com. plete the work, when suit is brought against him for forcible entry and detainer, the action is premature, and he cannot be held. And it makes no difference that in effecting an entrance into the house, in obedience to such orders, he is compelled to overcome obstacles placed there by plaintiff himself. Seifert v. Withington, 63 Mo. 577.

1. State v. Wilson, 94 N. Car. 839; Dickinson v. Maguire, 9 Cal. 46; Davis v. Woodward, 19 Minn. 137.

If one find a man out of his house, and forcibly withhold him from returning to it, and send persons to take peaceable possession of it in the party's absence, this, according to the better opinion, is a forcible entry. I Russ. on Cr. (9th Am. ed.) 426.

Forcible Detainer after Surreptitious Entry. If a possession surreptitiously obtained, is maintained by force, the entry will be considered forcible. Burt v. State, 2 Treadw. (S. Car.) Const. 489.

2. The defendants are guilty of a forcible detainer, if the entry was unlawful

and the detainer forcible, whether they originally obtained possession peaceably or otherwise; but where the entry was peaceable, and made in good faith under a claim of title, they are not liable for an unlawful detainer, even if they resist the entry of the prior possessor. Conroy v. Duane, 45 Cal. 597.

Detainer of Neglected Claim.-One who peaceably enters upon a mining claim which has been worked for prospecting purposes by another, but which the latter has not worked or occupied for several months, is not guilty of a forcible entry; and the mere fact that the one who makes such entry does not deliver possession to the other upon demand, does not make him guilty of a forcible detainer. Laird v. Waterford, 50 Cal. 315.

The New York Doctrine.-To authorize proceedings for forcible detainer, the entry must be an unlawful entry, followed by a forcible detainer. People v. Fields, I Lans. (N. Y.) 222.

Every forcible entry is forbidden; but a forcible detainer after a peaceable entry is not, unless the latter is unlawful. In either case the law gives no remedy to any one who is not entitled to the possession. Hoffman v. Harrington, Mich. 52.

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Proof that the plaintiff was lawfully possessed of the premises, and that the defendant entered into and detained, or unlawfully detained, the same is enough in the first instance. McCartney v. Auer, 50 Mo. 395.

Detainer from Tenant.-A landlord entitled to repossession may not re-enter during the tenant's temporary absence, without legal warrant, and hold forcible possession. Mason v. Hawes, 52 Conn. 12; s. c., 52 Am. Rep. 552.

1. Abbott's L. Dict.

The Common Law.-Forcible detainer is where a man, who enters peaceably, afterwards detains his possession by force; and the same circumstances of violence or terror which will make an entry forcible will also make a detainer

forcible. From whence it seems to follow, that whoever keeps in his house an unusual number of people. or unusual weapons, or threatens to do some bodily hurt to the former possessor if he dare return, is guilty of a forcible detainer, though no attempt be made to re-enter; and it has been said that he will also come under the like construction who places men at a distance from the house, in order to assault any one who shall attempt to make an entry into it; and that he is in like manner guilty who shuts his doors against a justice of the peace coming to view the force, and obstinately refuses to let him come in. This doctrine will apply to a lessee who, after the end of his term, keeps arms in the house to oppose the entry of the lessor, though no one attempt an entry; or to a lessee at will detaining with force after the will is determined; and it will apply in like manner to a detaining with force by a mortgagor, after the mortgage is forfeited, or to the feoffer of a disseisor after entry or claim by the disseisee. And a lessee resisting with force a distress for rent, or forestalling or rescuing the distress, will also be guilty of this offence.

But a man will not be guilty of the offence of forcible detainer for merely refusing to go out of a house, and continuing therein in despite of another. So that it is not a forcible detainer if a lessee at will, after the determination of the will, denies possession to the lessor when he demands it, or shuts the door against the lessor when he would enter; or if he keeps out a commoner, by force upon his own land. I Russ. on Cr. (9th Am. ed.) 427.

2. 2 Whart. Cr. L. § 1083.

A finding of a forcible detainer is not justified by evidence that the party holding possession of the premises detained, declared that he would remain until put off by force of law. Hodgkins v. Jordan, 29 Cal. 577.

Forcible entry and detainer cannot be maintained where there is nothing to show that defendant detained the prem

ises by force, or by threats of personal violence. The action cannot be made a substitute for the action of ejectment. Taylor v. Scott, 10 Oreg. 483.

In Illinois, under the act of 1819, actual force is necessary to constitute a forcible detainer, and the inquisition can be held at any place other than the premises. Bloom v. Goodner, I Ill. (Breese) 63. But see Atkinson, v. Lester, 2 Ill. (1 Scam.) 407.

In Indiana, proceedings in a case of forcible detainer may be supported, under the statute, without proof that the entry was unlawful. Barton v. Osborn, 6 Blackf. (Ind.) 145.

Where, as in Oregon, the action lies, "where the possession shall be held by force," it is not maintainable when the facts show no indication of a purpose to resist the owner's entry by force. rington v. Watson, 11 Oreg. 47.

Har

1. I Bishop Cr. L. § 536. Threats of Bodily Harm, to the former possessor. communicated to him by others, constitutes forcible detainer; and character for violence of the party making them may be proved to show that the plaintiff was under a reasonable fear of harm. Ladd v. Dubroca, 45 Ala. 421.

Evidence does not sustain an action of forcible entry and detainer which tends to prove only that the defendant peaceably entered vacant land belonging to her plaintiff, which was surrounded by a fence, but on which the plaintiff did not reside, and built a house thereon, and resided in it, and told agents of the plaintiff that he would not leave the lot, and that it would take a pretty good force to put him off. Polack v. McGrath, 25 Cal. 54.

Detainer of Lands Held under Authority of Law. That the accused stood on the steps with a cane in his hand, and refused admittance to one who had been put in possession the day before by legal process, held, not to render him guilty under Mo. Rev. St. State v. Richards, 15 Mo. App. 331.

A prosecution cannot be maintained under Ind. Rev. Stat. 1881. § 1972, against one who forcibly holds lands under a writ regular on its face, based on a judgment of court having jurisdic

tion, though it was unlawfully issued Vess v. State, 93 Ind. 211.

Threats of Prosecution.-A removed from a house and lot, leaving a few articles in the house and on the lot, and fastening the door. In the night of the second day afterward, the door being proved to have been still fast on the evening of that day, B entered into the house and put a tenant in possession, directing him to prevent any person, and A particularly, from taking possession, and threatening to beat and prosecute any one who should enter on the premises. There was no direct proof, however, that B broke open the door. On the complaint against B for a forcible entry and detainer, held, that the evidence would justify a finding against the defendant as to the forcible entry, and that it was clear against him as to the forcible detainer, which, under the statute of Indiana, entitled the plaintiff to restitution. Evill v. Conwell, 2 Blackf. (Ind.) 133.

Dispossession of Tenant Refusing to Attorn.-A lessor at an execution sale purchased the lessee's interest in the premises, and took a sheriff's deed therefor, but a tenant of the lessee refused to attorn or surrender possession to him, locked up the premises and left them before the expiration of the lease. The lessor took possession next day. Held, to be a disseisin, and, after a written demand from the lessee, to be an unlawful detainer, within Wagn. (Mo.) Stat. 642, 83 (distinguishing 52 Mo. 327); May v. Luckett, 54 Mo. 437.

Worm Fence on Line.-Unlawful detainer will not lie against an adjoining owner for building a worm fence half beyond the dividing line. Pettigrew v. Lancy, 48 Mo. 380; Springer v. Sullivan County, 48 Mo. 384.

Farm in Two States.-Where a party was in the unlawful possession of a farm lying partly in Massachusetts and partly in Connecticut, and the owner entered on the Massachusetts side and demanded possession of the whole, and the other party, being then a short distance on the Connecticut side, and having an ox goad in his hand, thereupon threatened violence to the owner with that weapon if

he did not leave the farm, upon which the owner abandoned his demand of possession. Held, that this was a forcible detainer of that part of the farm lying in Massachusetts. Benedict v. Hart, 1 Cush. (Mass.) 487.

1. Doty v. Burdick, 83 Ill. 473; Davis v. Woodward, 19 Minn. 137.

Refusal to Perform Agreement.—If the tenant has notified the landlord that he will not cultivate the land according to agreement, and intends to hold possession without paying rent, the landlord may treat the lease as rescinded and recover possession by unlawful detainer. Buckner v. Warren, 41 Ark. 532.

In California, an action of unlawful detainer, for holding over after the expiration of the term cannot be maintained unless the time during which the defendant was to occupy the land had expired when the demand for possession was made by the plaintiff; and the above rule holds good whether the agreement under which the defendant occupies is a lease. or an agreement to farm the land for a portion of the crop. Rogers v. Hackett, 49 Cal. 121.

The fact that the agreement under which the defendant occupies is a verbal one, and that by its terms it was to continue for two years, does not change the rule.

Notice. It is sufficient to maintain an action of forcible detention under Code Civil Proc. Neb. ch. II., that the party in possession refuses to vacate the premises on lawful notice. Post v. Bohner (Neb.), 36 N. W. Rep. 508.

By the Maine Statute of 1824, ch. 268, a mere refusal to deliver possession of the land when demanded would not support the process of forcible entry and detainer; but this is sufficient under the statute after thirty days' notice to quit. Clapp v. Paine, 18 Me. 264.

If a party agree to surrender premises when demanded, and, upon demand made refuses to surrender, this will be a wilful and unlawful holdin gunder the Tennessee

act.of 1821, ch. 14; such a person is not entitled to a notice to quit. Trousdale v. Darnell, 6 Yerg. (Tenn.) 431.

In New Hampshire, if a tenant refuses to leave at the time fixed in a notice to quit, the leassor may peaceably remove the tenant's goods, doing no unnecessary damage. Weeks v. Sly, 61 N. H. 89.

The Refusal. The holding over of a tenant without a refusal to deliver up the premises, actual or constructive, does not constitute a forcible detainer. Shepard v. Thompson, 2 Bush, (Ky.) 176.

In

A, tenant for life in land, with remainder in fee to B, conveyed in 1851 to defendant road all right. "title, interest, and estate of, in, and to so much of her land in W. county as may be laid out for the constructon of its railroad." ISSI A died, the railroad having taken no steps to acquire the right of way except conveyance from A; and three years afterward B brought unlawful detainer against the railroad. Held, that he was entitled to judgment (Richardson, J., dissenting). Hope v. Norfolk & Western R. R. Co., 79 Va. 283. No right of action accrued till A's death. Ib.

2. State v. Cargill, 2 Brev. (S. C.) 445; Curry v. Hendry, 46 Ga. 631; Frazier v. Hanlon, 5 Cal. 156; O'Callaghan v. Booth, 6 Cal. 63.

Where the Relation of Landlord and Tenant Does not Exist, a party entitled to the possession of lands or tenements cannot maintain the summary process by complaint provided by the Rev. Stat. ch. 104, in cases of forcible entry and detainer, unless there be an actual forcible entry or detainer by violence or threats of violence, in taking or keeping possession, or some act or threat of force adapted to alarm the party. or deter him, from an apprehension of forcible resistance. Such complaint is not sustained by proof of a mere unlawful entry into a house, after the owner has forbidden such entry, and a refusal to leave it after repeated orders to leave it, without