the limitation of their jurisdiction in civil cases to actions where the amount in dispute does not exceed a certain amount does not apply to forcible entry and detainer;1 but they have no jurisdiction in cases where the title to real property comes in question, and in vey v. Summer, 61 Mo. 253; Johnson v. Ervine, 3 Metc. (Ky.) 251; Armstrong v. Paul, 1 Nev. 134; Mather v. Hood, 8 Johns. (N. Y.) 44; Small v. Gwinn, 6 Cal. 447; Hart v. Moon, 6 Cal. 161; Beck v. Glenn, 69 Ala. 121. And see Brummagim v. Spencer, 29 Cal. 661; Caulfield v. Stevens, 28 Cal. 118. In California, the jurisdiction of justices of the peace in forcible entry and detainer arises from the quasi criminal character of such cases, which fall under the head of "special cases, "as that term is used in the constitution. Small v. Gwinn, 6 Cal. 447. There must be either a forcible entry, or the relation of landlord and tenant must exist, before a justice can take jurisdiction in an action of forcible entry and detainer. Steiner v. Priddy, 28 Ill. 179 Justices of the peace have jurisdiction in actions to recover the possession of real estate, only where the relation of landlord and tenant exists; or, where there has been an unlawful or forcible en try into lands, and either a peaceable or forcible detainer thereof; or, where, having peaceably obtained possession, one unlawfully and forcibly keeps the same. Short v. Bridwell, 15 Ind. 211. In Nevada, a justice of the peace continued to have jurisdiction in actions of fraudulent entry and detainer after the constitution of this State went into effect, until the district courts in which jurisdiction in such actions is vested by the constitution were created and became operative. Armstrong v. Paul, I 134. Nev. Where a complaint in writing, in a forcible detainer suit, is transmitted with the papers on an appeal from a justice, and his transcript shows that a complaint was filed, though his file-mark is not on the complaint, this is sufficient to give jurisdiction to both the justice and circuit court. Reynolds v. Gage, 91 Ill. 125. Justices of the peace have exciusive original jurisdiction of actions for forcible entry and detainer brought in Jo Daviess county. Ginn v. Rogers, 9 Ill. 4 Gilm.) 131. 1. Hart v. Moon, 6 Cal. 161; Silvey v. Summer, 61 Mo. 253; Weston v. Haley, 27 Vt. 283; Dibell v. Brinkerhoff, 22 Mich. 371. In actions against tenants unlawfully holding over, and in forcible entry and detainer, the jurisdiction of justices of the peace is special, and unlimited as to amount. Sturgeon v. Hitchens, 22 Ind. 107. A justice of the peace, when trying a complaint in the nature of a forcible entry and detainer, under the statute of Michi gan is not bound by any of the provisions of the justice's act. Comp. Laws, ch. 117. Dibell . Brinkerhoff, 22 Mich371. All questions, other than title, properly in issue are triable before the justice. Newton v. Leary, 64 Wis. 190. Where, in a forcible entry and detainer suit, the relation of landlord and tenant does not exist, but the title to the land is shown to be in controversy, a justice must dismiss the suit; he has no jurisdiction to proceed. Hughes v, Mount, 23 W. Va. 130. In forcible entry and detainer, the mere filing by defendants of an answer claiming title to the premises will not deprive a justice of the peace or county judge of jurisdiction; but if it should appear from the evidence that the question involved was one of title, and not for. possession, the case must be dismissed. Pettit v. Black, 13 Neb. 142. Removal to Higher Court.-Where, in an action of forcible entry and detainer before a justice of the peace, the petitio does not set up title in the plaintiff, an answer averring title in the defendant is not responsive, and does not require the removal of the action to the circuit court. Jordan v. Walker, 56 Iowa, 686. In a forcible entry and detainer suit, under the Wisconsin statute the question of title cannot be put in issue. All other questions properly in issue are triable before the justice. Newton v. Leary, 64 Wis. 190. Cases of forcible entry and detainer cannot be removed to a superior or appellate court by unnecessarily involving the title to land in the issue, by false pleading. Abbot v. Norton, 53 Me. 158. Rev. Stat. ch. 88, § 10, of Wisconsin, denies to a justice of the peace jurisdiction of any action in which the title to real estate shall come in question. A justice may, nevertheless, have jurisdiction of the process of forcible entry and detainer, that process not being resorted to for the determination of title to the premises detained. Gates v. Winslow, I Wis. 555. such case must dismiss the suit or it must be removed to a higher court. And where a justice exceeds his jurisdiction he becomes a trespasser.1 The action being statutory, the other courts of limited jurisdiction, as well as the justice's courts, can entertain the action only when the power is conferred on them by statute; and the statutory regulations of the various States on this subject differ to such an extent that it is impossible to deduce any general rule from the decisions of the courts.2 1. Haskins v. Haskins, 67 Ill. 446. 2. In Alabama, the county courts have no jurisdiction by certiorari or otherwise, of cases of forcible entry and detainer. Dunham v. Carter, 2 Stew. (Ala.) 496. In California, the action of forcible entry and detainer, being a summary one provided by statute, does not belong to the district courts, by virtue of their original common-law jurisdiction; and, although the county court is authorized to try these cases de novo on appeal, such a trial is an exercise of appellate and not original jurisdiction. Townsend v. Brooks, Cal. 52; S. P. O'Callaghan v. Booth, 6 Cal. 63. The proceedings in unlawful detainer are purely statutory in their nature, and the county court is a court of special and limited jurisdiction; and it is, therefore, essential to the validity of the proceedings that the statute be strictly complied with. Iburg v. Fitch, 57 Cal. 189. Section 3 of the California Act of April 2, 1866,-which makes persons entering lands or tenements in the night-time, or during the absence of the owner, and refusing to surrender possession on demand, guilty of forcible detainer,—is not in conflict with that section of the constitution of the State which confers upon the county courts jurisdiction over actions for "forcible entry and detainer." Mecham v. McKay, 37 Cal. 154. pare Shelby v. Houston, 38 Cal. 410. Com The Recorder of Sacramento City has no jurisdiction in cases of forcible entry and unlawful detainer; but an action commenced before the recorder having been transferred to a magistrate having jurisdiction, by consent of parties, the appearance of the defendant and his consent fixing the time of trial were a waiver of his right to be brought in by complaint and summons. Cronise v. Carghill, 4 Cal. I20. In Georgia, on the 26th of October, 1867. a justice of the inferior court had authority to administer the oath required to eject an intruder upon land. Collins v. Rutherford, 38 Ga. 29. 8 C. of L.-10 In North Carolina, an indictment for this offence will lie in the superior courts, and a writ of restitution may be awarded by them. State v. Butler, Cam. & N. (N. Car.) 331; 1 Tayl. (N. Car.) 262, The Indiana Statute confers jurisdiction, in cases of forcible entry and detainer, upon justices of the peace, and also upon courts of common pleas. Witz v. Haynes, 43 Ind. 470. In Kentucky, a writ of forcible entry and detainer can only be issued by a justice of the peace; and a county judge, though having the power of a justice in criminal and penal and other special cases enumerated in Rev. Stat. yet has no power to issue this writ. Johnson v. Erwine, 3 Metc. (Ky.) 251. In Nevada, the constitution gives the county courts jurisdiction of actions of forcible entry and detainer, and the nature of such action for the purposes of such jurisdiction is shown by the statutes. Hoopes v. Meyer, 1 Nev. 433. The New York Statute of 1857, to reduce the several acts relating to the district courts in the city of New York into one act, which professes to reorganize these courts and define the duties and powers of the justices thereof, not having expressly conferred upon them jurisdiction of proceedings for forcible entry and detainer, the omission to do so must be deemed intentional, and the former laws conferring such jurisdiction are thereby repealed, Brown v. Cromien, 50 How. Pr. (N. Y.) 192. In Tennessee, the justices of the peace and the circuit courts have concurrent jurisdiction of the action. White v. Suttle, I Swan (Tenn.), 169. In West Virginia, the court of appeals has jurisdiction in cases of unlawful entry and detainer, in which the question of possession alone is in controversy; possession is an important element of title, and one which comes within the provision of the constitution, giving jurisdiction in controversies concerning the title or boundaries of land. Gorman v. Steed, I W. Va. 1. 145 2. Commencement of the Action.-a. The Summons or Warrant.The summons or warrant must be substantially in the form prescribed by the statutes.1 And it should be issued by the court on an affidavit or complaint, and be made returnable and be returned to the court at a fixed time.3 b. Service of Process.-The statutes of the several States usually require a personal service of process when it can be made with due diligence, and prescribe other modes of service when the party to be served cannot be found, manner of the service and of the 1. Smith v. White, 5 Dana (Ky.), 376; Supervisors v. Ellison, 8 W. Va. 308. In Arkansas, the summons in an action of forcible entry and detainer need not contain a literal copy of the plaint. The substance thereof is sufficient. A substantial and not literal compliance with a form of proceeding prescribed by statute is sufficient. Russell 21. Wheeler, Hempst. (U. S.) 3. In a complaint of forcible entry and detainer the law does not require it to be stated in the warrant that the complaint was made under oath. Lithgow ข. Moody, 35 Me. 214. Contents of Warrant.-Where a person was arrested for a forcible entry, held, that there should appear in the warrant sufficient averments of force and of a disturbance of the peace to support an indictment for that offence. Hunt v. Ballew, 9 B. Mon. (Ky.) 390. Under section 500 of the Kentucky civil code, a warrant for forcible detainer which discloses no interest nor right to the possession of the premises in the plaintiff is fatally defective; and to maintain a proceeding for a forcible detainer it is essential that the relation of landlord and tenant should be alleged, or in some form appear on the face of the warrant. Taylor v. Monohan, 8 Bush (Ky.), 238. In a proceeding for unlawful detainer, the plaintiff must prove the detainer at the date of the warrant; but if the warrant does not allege the detainer, that may be aided by the complaint, if it states the fact. Kincheboe v. Tracewells, II Gratt. (Va.) 587. 2. An affidavit, and not a mere verbal complaint under oath, is the indispensable jurisdictional foundation for the justice's entire proceeding in forcible de tainer, and must precede the summons. Stolberg v. Ohnmacht, 50 Ill. 442. A complaint in a summary proceeding for the recovery of the possession of land should not be dismissed because the summons was not issued until the day after the complaint was sworn to. Gruler v. McRoberts, 48 Mich. 316. Under Rev. Stat. ch. 128, 1, 2, the same magistrate must receive the complaint under oath and issue a warrant. Labaree v. Brown, 38 Me. 482. Minute of Time of Exhibition.-Upon a complaint brought under the sixth section of the act of Vermont, to prevent forcible entry and detainer, of February, 1797, it is not necessary that the magistrate issuing the process should minute on the complaint the time of its exhibition. Allen v. Ormsby, 1 Tyler (Vt.), 345. Where an action appears to be brought under the third section of the act of forcible entry and detainer, it must bear the minute of the time of the exhibition, etc., required by the fifth section of the Statute of Limitations. Hall v. Brown, 2 Tyler (Vt.), 64. A Recognizance for Prosecution, taken on the issuing of process on a complaint for forcible entry and detainer, under the Connecticut statute, before the magistrate signing such process, is valid. Dutton v. Tracy, 4 Conn. 79. 3. Gorman v. Steed, I W. Va. I. A warrant for forcible entry must be executed within thirty days from its date. Humphrey v. Jones, 3 T. B. Mon. (Ky.) 261. Under the New Hampshire statute, in relation to the process of forcible entry and detainer, where the warrant is made returnable on the same day when it is issued it is irregular. State v. Sawyer, 5 N. H. 398. A summons in forcible entry and detainer, dated 24th July, 1817, returnable 26th July, was held sufficient under the statute. Pullen v. Boney, 4 N. J. L. (1 South.) 125. 4. Hemstreet v. Wassum, 49 Cal. 273. The service of notice of inquiry, in forcible entry and detainer, in New York must be either by fixing a notice in writing on some suitable and public place on the premises, as the front door of the house, or by delivering the notice personally to the party against whom the complaint is made, if on the premises. Forbes v. Glashar, 13 Johns. (N. Y.) 158. Where the affidavit of service of notice the return being usually the same as that provided in civil actions generally.1 c. The Inquisition.-An inquisition or inquest is an inquiry or investigation made by a justice to whom complaint is made, by a jury of the county, as to the entry and detainer and as to the right of possession with a view to the restitution of possession in a proper case.2 Restitution may be refused even when the defendant is convicted, it being dependent upon the right of possession.3 stated that the party was on the premises and that the notice was put upon the house in a conspicuous place," it was held not to be sufficient, and the conviction was set aside and restitution ordered. Mather v. Hood, 8 Johns. 44. Where a sheriff's return of a writ of "forcible detainer" shows a personal service upon the defendant in substantial compliance with the statute, his failure to return a bond does not invalidate the service, though it may subject him to liability as an officer. Keller v. Henry, 24 Ark. 575. In New Jersey, service of a summons by leaving a copy fastenned to the door of the house which is said to be in possession of the defendant, as he was not therein is not sufficient. Miller v. Doolittle, 5 N. J. L. (2 South.) 845. If in a forcible-entry proceeding the tenant is served by a copy left, instead of personally, he may appear and deny the jurisdiction. State v. Marshall, 24 S. Car. 507. In Minnesota, a summons served by reading it in the presence of the defendant is not sufficient. Tallman v. Gilman, I Minn. 179. In Kentucky, the service of a warrant of forcible entry and detainer must be by notice to each defendant in person, not by copy left. Lewis v. Outten, 2 Dana (Ky.), 92. In New Hampshire, if in the service of the warrant the body of the respondent be not arrested four days before the day of trial, a copy of the warrant must be left at the usual place of abode of the respondent a like number of days before the trial. State v. Sawyer, 5 N. H. 398. 1. Hemstreet v. Wassum, 49 Cal. 273. 2. 2 Bish. Cr. L. $$ 494, 495; Watson College, 2 Jones L. (N. Car.) 211. 3. 2 Bish. Cr. L. § 514; 2 Whart. Cr. L. SIIII. J. An inquisition under the statutes 8 Hen. VI. ch. 9, or 21 Jac. I. ch. 15, which entitles the parties ousted to a writ of restitution, must show what estate he had in order that it may appear whether he is " On an application for process, under the act relative to forcible entries and detainers, an affidavit that the complainant was lawfully and peaceably possessed of the premises in question, as tenant thereof, under the executors of A., deceased, who was the owner of the same," without setting forth the nature of the estate by virtue of which such possession was held, is sufficient within the provisions of the statute, upon objection made after inquisition, finding the complainant to be tenant at will. People v. Reed, II Wend. (N. Y.) 157. In Kentucky, on a warrant of forcible detainer, the inquisition found "that the right of possession was in the plaintiff," and on a traverse the jury found the defendant guilty of forcible detainer. Held, that the inquisition was defective, and that the finding on a traverse could not cure the defect. Todd v. Bates, 3 Bibb (Ky.), 100; Penny v. Skirvin, 9 B. Mon. (Ky.) 238. The only legal inquiry in the possessory action is, "Was the plaintiff the actual possessor as alleged, and did the defendant disturb him?" and plaintiff need only show possession for a year and a day. Lange v. Baranco, 32 La. Ann. 697. The proceedings in an inquisition of In most of the States civil process for regaining possession has practically taken the place of the inquisition and restitution upon criminal prosecution.i d. Indictment. In a criminal prosecution for forcible entry and detainer the indictment must allege the forcible entry or the forcible detainer, that the complainant was in peaceable possession at the time of the entry. And in some States it is also necessary forcible entry, etc., were quashed because the defendant was stated in the inquest to have been "possessed," but no estate or term was laid. Respublica v. Campbell, I Dall. (Pa.) 354. An allegation in the inquisition, that the prosecutor was disseized, necessarily implies a previous seizin. Commonwealth v. Fitch, 4 Dall. (Pa.) 212. Practice on Inquisition.—Where an inquisition or forcible entry and detainer is found by a jury, and the defendant tenders his plea in writing, denying the force, the general practice is to certify the proceedings to the superior court. State v. Dillon, 3 Hayw. (Tenn.) 174. Where the justice acts upon his own view, without any inquisition by a jury, he can only punish the party guilty of the force, but cannot meddle with the possession. And if he orders restitution of possession it is irregular. Matter of Shotwell, 10 Johns. (N. Y.) 304. An inquisition of forcible entry and de. tainer, purporting to be taken on the oaths or affirmations" of A, B, and C, is bad unless it states that those who were affirmed were Quakers, or conscientiously scrupulous of taking an oath. State v. Putnam, 1 N. J. L. (Coxe) 260. In New York, where the justice of the peace proceeds under the second section of the statute of session II, ch. 6, it is not necessary that he should previously go in person and record the force. People v. Anthony, 4 Johns. (N. Y.) 198. The remedy given by that section is distinct from that given by the former section. People v. Anthony, 4 Johns. (N. Y.) 198. If defendant has no notice of an inquisition of forcible entry and detainer it is a fatal defect. State v. Stokes, 1 N. L. (Coxe) 392. Election to Proceed by Indictment.-An objection to an inquisition that the relator has elected to proceed by indictment is of no avail. Sherill v. Nations, I Ired. L. (N. Car.) 325. Matters of Form.-It is not necessary that the justice before whom an inquisition of forcible entry and detainer is taken should sign it. Covenhoven v. State, I N. J. L. (Coxe) 258. An inquisition of forcible entry and detainer is not vitiated by the dates being expressed in figures; this proceeding is in some respects a civil suit. Covenhoven v. State. I N. J. L. (Coxe) 258. 1. 2 Bish. Cr. L. § 514. 2. People v. Runkel, 9 Johns. (N. Y.) 147: Blackwell v. State, 26 Ind. 204. An indictment for forcible entry alleging that the plaintiff and another person unlawfully, forcibly, injuriously, and with strong hand did break and enter" into a house of A and keep possession of the same, A being there and forbidding their entry, is good at common law. If the defendant has title, it should appear in defence, and not by a negative averment in the indictment. State v. Whitfield, 8 Ired. L. (N. Car.) 315. The statute 5 Richard II. c. 7, respecting entry manu forte is part of the common law of the State. Harding's Case, I Greenl. 22. Forcible entry into a dwelling-house is indictable at common law, though the force be alleged only in the formal words vi et armis. Commonwealth v. Fitch, 4 Dall. (Pa.) 212. 3. An indictment lies at common law for a forcible entry and detainer, inasmuch as it disturbs the peace; and in such an indictment it is not necessary to allege that the party ousted had any estate in the land, but it is sufficient to aver that he was in quiet possession. State v. Speirin, I Brev. (S. Car.) 119. The allegations that the prosecutor "was seized and "that his possession thereof continued," etc., are not cause for an arrest of judgment on the ground of repugnancy; the latter clause being surplusage. Respublica v. Shryber, I Dall. (Pa.) 68. In an indictment for forcible entry, etc.. the prosecutor need not state "when" he was seized of the premises. Respublica v. Shryber, I Dall. (Pa.) 68. Possession of Married Woman.-An indictment for forcible entry alleging the possession to be in a married woman who has a husband in full life, and where there is no separation, is not good. possession is in the husband, and ought The |