to set forth his estate in the premises. It must describe the premises with legal certainty. And it may be stated generally, that every fact necessary to constitute the offence must be set forth. An indictment to be good must set forth with plainness and certainty all the essential facts constituting the offence; the charge must be explicit enough to support itself, for if all the facts alleged in the indictment be true, and yet constitute no of fence, the indictment is insufficient.3 And while forcible entry and forcible detainer are sometimes separate offences, it has still been held that they may both be charged in the same count of the indictment.4 to be so laid. Commonwealth v. Kensey, 2 Pars. Sel. Cas. (Pa.) 401. 1. An indictment for forcible entry and detainer under the New York statute (R. L. 98) must set forth a seizin or possession within the purview of the act, or whether the estate of the relator be a freehold or a term of years; and on the traverse the allegation as to his estate must be proved by the relator. People v. Nelson, 13 Johns. (N. Y.) 340. Though the defendant cannot justify the force by showing a title in himself, he may controvert the facts by which the relator attempts to show a title in himself. Mather v. Hood, S Johns. (N. Y.) 44. The indictment must show the continuance of the term at the time the writ is moved for, and that the party was possessed of a term of years. State v. Butler, Cam. & N. (N. Car.) 331; I Tayl. (N. Car) 262. 2. In a prosecution by information for a forcible entry and detainer, any variance between the description of the premises, as laid in the information and the evidence, will be fatal. Ball v. State, 26 Ind. 155. Under an indictment for forcible entry a description of the premises was held sufficient that gave the number of acres, county, town, and the two adjoining tracts of land. Dean v. Commonwealth, 3 Serg. & R. (Pa.) 418. And see Commonwealth v. Jackson, I Grant Cas. (Pa.) 262; Torrence v. Commonwealth, 9 Pa. St. 184; Vanpool v. Commonwealth, 13 Pa. St. 391. messuage and tract of land without giving the number of acres was held bad on a writ of error. McNair v. Rempublicam, 4 Yeates (Pa.), 326. The term messuage" in an indictment is sufficiently descriptive of the premises. State. Butler, Cam. & N. (N. Car.) 331; I Tayl. (N. Car.) 262. 3. State v. Eason, 70 N. Car. 88. In an indictment it is enough if the complainant or the party injured and the injury are named and stated with sufficient certainty to enable the court to ascertain the injury and award restitution; and any variance not essential in the name or description of a corporation will not vitiate the proceedings. People v. Runkel, 9 Johns. (N. Y.) 147. An indictment for forcible entry and detainer under the statutes of 8 Hen. VI. ch. 9, or 21 Jac. I. ch. 15, need not show that the inquisition was taken at the place alleged to be forcibly entered; although it is otherwise as to a conviction under the statute 15 Ric II. ch. 15. State v. Speirin, 1 Brev. (S. Car.) 119. 4. While a defendant may be indicted and convicted under one indictment for forcible entry and detainer, both together constituting one offence, yet each may constitute a separate offence; and under an indictment for forcible entry and detainer, in order to support a verdict of guilty, both branches of the offence must be proved. In the absence of any proof of forcible detainer a verdict of guilty is not supported by the evidence. Blackwell v. State, 74 Ga. 816. A and B were indicted for forcible entry and detainer, the indictment containing but one count. Before plea filed their counsel moved to quash the writ, which the court refused to do. The jury returned a verdict of not guilty, but that the defendants pay the costs. Defendants then moved in arrest of judgment that the offences with which they were An indictment for forcible entry into a charged were distinct and separate, that An indictment was arrested for want of certainty, the words being "a certain message with the appurtenances for a term of years in the district of Spartenberg." It was adjudged that the place where was not described with sufficient legal certainty. State v. Walker, 2 Brev. (S. Car.) 255. 3. Venue. Generally, the action may be brought in any township in the county within which the land lies; though in some of the States the venue seems to be governed by the residence of the parties and not by the locality of the land, and the action is brought in the county or town where the parties reside.2 4. The Complaint. The general rules of pleading govern in forcible entry and detainer upon all points not specially provided for in the statutes relative to that subject. And a complaint is ordinarily sufficient if it allege all the facts required by the several statutes of forcible entry and detainer, a substantial performance of these requirements being all that is necessary. The complaint is usually in the nature of a declaration, and it must set forth the venue, show the facts necessary to give the court jurisdiction, and describe the premises with such certainty as to appraise the defendant of what is demanded, and afford a guide to they were coupled in one count, and that the indictment was therefore void for duplicity. The court sustained the motion and arrested the judgment. Held to be error. The indictment was good, and judgment or sentence should have been entered thereon. Commonwealth v. Miller, 107 Pa. St. 276. 1. Murphy v. Lucas, 2 Ohio, 255; Quinebaug Bank v. Tarbox, 20 Conn. 510; Boxley v. Collins, 4 Blackf. (Ind.) 320. 2. Billings v. Chapin, 2 Ill. App. 555. A justice of the peace of one county may administer the oath and issue the warrant necessary to dispossess a tenant holding over in another county. Du Bignon v. Tufts, 66 Ga. 59. Under Special Laws 1874, c. 565, the municipal court for the town of Brunswick has jurisdiction of the process of forcible entry and detainer where both parties live in that town, and the land is situated therein, and the damages alleged do not exceed fifty dollars. Woodside v. Wagg, 71 Me. 207. But see Hoffman v. Parsons, 27 Minn. 236, where it was held that a justice of the peace of a town in Ramsey County, Minn., may properly, within his own town, issue a summons and entertain proceedings in forcible entry and detainer, though the parties to the proceedings reside in St. Paul, and the premises which are the subject thereof are within the limits of that city. 3. More v. Del Valle, 28 Cal. 170; Clark v. Gage, 19 Mich. 507. The precisions required by Michigan Comp.. Laws, SS 4976, 4986, in a com. plaint in forcible entry and detainer, in identifying the premises intended, should be measured by the rules of pleading rather than by those which govern con tracts. Clark ย. Gage, 19 Mich. 507. In an action of unlawful detainer brought by a judgment debtor to recover lands which had been sold under execution against him, and which he had attempted to redeem, the pleadings are the same as in an ordinary action of that kind; and if issue is joined on the plea of not guilty, he must show a sale by the sheriff, a purchase by the defendant or the person under whom he holds, a delivery of possession by him to the purchaser, a payment or tender of the purchase-money, with ten per cent per annum interest, and all lawful charges, and a notice in writing to the tenant in possession to quit. Jonsen v. Nabring, 50 Ala. 397. 4. Rivereau v. St. Ament, 3 G. Gr. (Iowa) 118; Ish v. Chilton, 26 Mo. 256; Simons v. Marshall, 3 G. Gr. (Iowa) 502; Shaw v. Gordon, 2 Greene (Iowa), 376; Royce v. Bradburn, 2 Dougl. (Mich.) 377. 5. An averment of a fact need not be in direct and express terms: it is sufficient that the fact appears by necessary implication from the words used. Lee v. Stiles, 21 Conn. 500. All the facts required to be stated in an affidavit were set forth in the complaint, which was verified, while there was no other affidavit. Held, that this was a substantial compliance with section 3 of the statute requiring the complaint to be in writing, and to be accompanied by an affidavit. Porter v. People, 7 How. Pr. (N. Y.) 441. Including Personal Property in an affi davit, may be regarded as surplusage, and does not vitiate the entire proceeding. Du Bignon . Tufts, 66 Ga. 59. the sheriff in executing the writ of restitution; States a verbal complaint is sufficient." though in some (a) Complainant's Estate and Possession.-The complaint should show that the complainant had the right of possession at the time of the commencement of the action, or that he was in possession actual or constructive.3 In some States it is held that the estate of the complainant, in the lands forcibly entered upon, must be shown. But in others 1. Murphy. Lucas, 2 Ohio, 255; Treat v. Bent, 51 Me. 478. 2. Under the Virginia Code, 556, ch. 134, in proceedings for unlawful detainer, the only complaint necessary is that contained in the summons; and if a case began before this statute was enacted it may go on under the provisions of that chapter. Olinger v. Shepherd, 12 Gratt. (Va.) 462. The Texas Act of 1848 to regulate proceedings in forcible entry and detainer does not expressly require the complaint to be in writing, although that was probably intended in requiring the justice to issue his summons on complaint upon oath of the party aggrieved," etc. But where the complaint was not set out in writing in the sumomns, accompanied by the affidavit of the party, and no objection was taken before the justice, held, that the objection could not be taken on the return to a certiorari in the district court. Clay. Clay, 7 Tex. 250. In Tennessee, the act of 1821, ch. 14, regulating the proceedings in an action for forcible entry and detainer, required a written complaint or statement, descriptive of the premises claimed and of the injury to the possession, to be filed with the justice who tried the action. The act of 1842, ch. 86, does not require any written complaint, but that the matter of the complaint should be incorporated in the warrant. It gives concurrent jurisdiction to the current court and to justices of the peace. If the action be instituted before two justices, the description must be contained in the warrant; if in the circuit court, in the declaration. While v. Suttle, I Swan (Tenn.), 169; Bush v. Dunham, 4 Mich. 339; Bryan v. Smith, 10 Mich. 229; State V. Pearson, 2 N. H. 550; People v. Fulton, 11 N. Y. (1 Kern.) 94. Manner of Pleading Possession.-A declaration under the act of 1848 must set out the facts of the case, that the court may see whether they come within the statute, which only applies to certain cases. An allegation that the plaintiff is entitled to the possession, states his own conclusions of law, and not the facts of the case, as is necessary, and is therefore bad. Cooper v. Marchbanks, 22 Tex. 1. 3. Corlies v. Corlies, 17 N. J. L. (2 Harr.) 167; Walters v. Rogers, 9 Ala. 834; Ward v. Lewis, I Stew. (Ala.) 26; Cunningham v. Green, 3 Ala. 127; McRae v. Tillman, 6 Ala. 486; Van Aspen v. Townsend, 38 Ala. 572; and see Davis v. Woodward, 19 Minn. 137. Construed against the Pleader.—The allegations of a complaint must be construed most strongly against the pleader, and when he says he is in possession, and at another time avers the contrary, the complaint shows no ground of action. Dickinson v. Maguire, 9 Cal. 47. Sufficiency of the Allegation.-A complaint for forcible entry and detainer cannot be maintained which merely alleges that the plaintiff was entitled to possession, and that the defendant entered forcibly and kept him out, without averring that the plaintiff had actual or constructive possession, or that the relation of landlord and tenant existed. Whitaker v. Gautier, 8 Ill. (3 Gilm.) 443. Nor is it sufficient to allege that A entered forcibly upon the premises of which the plaintiff was in possession, and that A afterward transferred the possession to the defendants, who have since forcibly kept possession. Ballance v. Curtenius, 8 Ill. (3 Gilm.) 449. 4. People v. Field, 52 Barb. (N. Y.) 198; Van Anken v. Decker, 2 N. J. L. (1 Pen.) 108: Barnes v. Nicholson, 2 N. J. L. (1 Pen.) 326; Banks v. Murray, 5 N. J. L. (2 South.) 849; Wall v. Hunt, 9 N. J. L. (4 Hals.) 37; Berry v. Williams, 21 N. J. L. (1 Zab.) 423. The omission in a complaint for a forcible entry, of the estate of the plaintiff in the premises, is perhaps demurrable, but it is certainly so when the complaint does not show that the plaintiff was in possession at the time of the entry. Walters v. Rogers, 9 Ala. 834. A Complaint in Unlawful Detainer by Two Plaintiffs, seeking recovery of the whole premises detained by a defendant, showed that the two plaintiffs were each separately in possession of the tract of this has been entirely dispensed with.1 And the object of this requirement would seem to be to show that the possession or right of possession of the complainant was legal and sufficient.2 (b) Allegations of the Entry and Detainer.-The complaint must allege that either the entry or the detainer was with force or with strong hand. In some States both the forcible entry and the forcible detainer must appear; but generally alleging either a forcible entry or a forcible detainer, will be sufficient.5 In Ken land; that each separately rented his undivided interest in the lands to the same defendant, but at different times and upon different terms; that the terms of each lease have expired, and that each plaintiff had separately demanded possession of the undivided interest which he had rented to the defendant, and that the defendant refused to deliver possession after such demands. Held, bad on demurrer, for misjoinder of parties plaintiff. Ware v. Warwick, 47 Ala. 295. When the action of unlawful detainer is brought by heirs, it is unnecessary to aver in the complaint that they are the only heirs; this is matter of defence. Hightown v. Fitzpatrick, 42 Ala. 597. 1. The act of 1842, ch. 86, regulating the action of forcible entry and detainer, dispenses with the necessity of stating in the writ the plaintiff's interest in the estate. The averrment that he is entitled to the possession is sufficient. v. Comer, 2 Sneed (Tenn.), 40. Rhodes 2. The legislature, in framing the statute of forcible entry and detainer, intended to require the relator to disclose the nature of his right to the possession-how, and from whom it was acquired-so that it would appear that his right was a legal and valid one. A complaint merely alleging that the relator and his grantor have been in possession for more than five years, and that the right to the possession still continues, is not a sufficient compliance with the statute. Since, however, possession is prima facie evidence of ownership in fee, and the defect in the complaint is not such as to deprive the court of jurisdiction if no objection is raised at the trial. People v. Field, 52 Barb. (N. Y.) 198. Under the New York statute relative to forcible entries and detainers, which requires that the complaint shall show that the complainant has some estate in the premises then subsisting, or some other right to the possession thereof, stating the same, a complaint which alleges that the complainant "had a good and legal right and estate to said premises, and that he still has a legal right to the possession of said premises," does not state the right, but the legal conclusion, and is therefore not a compliance with the statute. People v. Field, 58 Barb. (N. Y.) 270. 3. McEvoy v. Igo, 27 Cal. 375; s. p., Owen . Doty, 27 Cal. 502; State v. Pearson, 2 N. H. 550; Carpenter v. Shepherd, 4 Bibb (Ky.), 501; McBrayer v. Wash, 6 J. J. Marsh. (Ky.) 464. And see Swartzwelder V. United States Bank, 1 J. J. Marsh. (Ky.) 38. See Davis v. Woodward, 19 Minn. 137. 4. Lewis v. Stith, 2 Litt. (Ky.) 294; Tipton v. Swayne, 4 Mo. 98. In an action under the Minnesota Rev. Stat. ch. 87, a declaration that the defendants forcibly entered and did detain certain described lands, and demanded restitution of the premises, is fatally defective. Fallman v. Gilman, I Minn. 179. In an action for unlawful and forcible entry and detainer, a complaint which follows the language of the statute, and charges "that the defendant made unlawful and forcible entry into the premises in question, then in possession of the claimant, and that the defendant continues unlawfully to hold, and with force and a strong hand to detain, the same from him, contrary to the form of the statute in such case made and provided," contains a sufficient statement of a cause of action. Jarvis v. Hamilton, 16 Wis. 574. 5. A complaint alleging that the plaintiff is the owner of the premises, that the defendant is a sub-tenant in possession under plaintiff, and holds unlawfully and against plaintiff's right, and forcibly detains the possession, is sufficient under the Michigan statute. Kusterer v. Wise, 59 Mich. 382. Under Comp. Laws, 4975, of Michigan, providing that "when any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession shall be unlawfully held by force, the person entitled may recover;" if the complainant alleges an entry and holding by force, the case tucky an allegation in the alternative of either the one or the other is enough. But in any event, a complaint not showing that the entry and detainer are unlawful, is fatally defective. The time of the entry is immaterial if before the commencement of the action, and may be proved on a different day from that alleged, and the particular circumstances of force and intimidation attending the entry are matters of proof, and not of pleading. c. The Description of the Property.-The complaint may describe the premises generally.3 But the description must be sufficiently accurate to readily identify and locate the premises for the possession of which the action is brought. As to what is a sufficient must be considered as one of forcible entry only. Seitz v. Miles, 16 Mich. 456. In Alabama, a count, in a complaint for forcible entry and detainer, that "the defendant entered on said lands peaceably, and by force or threats detains the same," sufficiently describes the wrong, and is not bad on demurrer. Ladd v. Dubroca. 45 Ala. 421. A complaint, after alleging the forcible entry and detainer of the premises, proceeded thus: "detaining and holding the same by such words, circumstances, or acting as had a material tendency to excite fear or apprehension of danger." Held, that the allegation of force was as direct and full as the statute requires. Huffaker v. Boring, 8 Ala. 87. A complaint alleged that the plaintiff was entitled to the immediate possession of certain premises, and that the defendant unlawfully detained said premises. Held, such complaint was insufficient under the act concerning forcible entry and detainer. Andrae v. Heinritz, 19 Mo. 310. 1. McBrayer v. Wash, 6 J. J. Marsh. (Ky.) 464; Carpenter v. Shepherd, 4 Bibb (Ky.), 501. 2. Blaco v. Haller, 9 Neb. 149; Caswell v. Ward, 2 Dougl. (Mich.) 374; Royce v. Bradburn, 2 Dougl. (Mich.) 377; Bliss v. Winston, I Ala. 344. But see Tagal v. Wallace, 48 Ga. 408, in which it was held that a warrant for forcible entry only, which shows upon the face that the entry was more than three years before the issuing of the warrant, and which contains no allegation or charge of forcible detainer, is demurrable as insufficient in law, and should be dismissed on motion, since the statute, in terms, provided that in no case shall the person in possession be turned out if he has been three years in peaceable possession of the premises. Jarvis v. Hamilton, 16 Wis. 574. 3. Moore v. Massie, 3 Litt. (Ky.) 196; Ladd v. Riggle, 6 Heisk. (Tenn.) 620; Allen v. Gibson, 4 Rand. (Va.) 468; Silvey v. Summer, 61 Mo. 253; Cairo, etc., R. R. Co. v. Wiggins Ferry Co., 82 Ill. 230. 4. Grant v. Marshall, 12 Neb. 488; Castro v. Gill, 5 Cal. 40; O'Hagan v. Crossman (N. J.), 14 Atl. Rep. 752; Nason v. Best, 17 Kan. 408; Cairo, etc., R. R. Co. v. Wiggins Ferry Co., 82 Ill. 230; Supervisors v. Ellison, 8 W. Va. 308; Schaumtoeffel v. Belm, 77 Ill. 567; Lewis v. Steele, 1 Minn. 88; Applegate v. Applegate, 16 N. J. L. (1 Harr.) 321; Klingensmith v. Faulkner, 84 Ind. 331; Gorman v. Steed, 1 W. Va. 1; Murphy v. Lucas, 2 Ohio, 255. Compare Silvey v. Summer, 61 Mo. 253; Moore v. Massie, 3 Litt. (Ky.) 296; Houghton v. Potter, 23 N. J. L. (3 Zab.) 338; Dunne v. Trustees of Schools, 39 Ill. 578. There can be no recovery of any premises not described in the complaint. Lamme v. Buse, 70 Mo. 463. In a writ of unlawful detainer, under the Virginia act of 1814, the omission of state in the complaint, the estimated quantity of land in dispute, is not fatal if the complaint contains a reasonably certain description. Allen v. Gibson, 4 Rand. (Va.) 468. The sufficiency of the complaint as regards the description of the premises is governed by the rules of pleading. Clark v. Gage, 19 Mich. 507. It is no objection to a complaint for a forcible entry and detainer, that it is unnecessarily prolix in describing the premises sought to be recovere.d If it furnishes data from which a diagram of the locus in |