ment of rent. Steele v. Grand Trunk Junction R. Co., 20 Ill. App. 366.

In an action of forcible entry and detainer, a variance between the affidavit filed by the plaintiff and the writ may be pleaded in abatement, as in a case where the affidavit was for unlawful detainer and the writ for forcible entry and detainer. Sumner v. Spencer, 9 Ark. 441.

The record of conviction, under the first section of the act of session II, ch. II, to prevent forcible entries and detainers, is not traversable; and if it shows that the justice had jurisdiction, and proceeded regularly, it is conclusive, and a bar to any suit brought against the justice. Mather v. Hood, 8 Johns. (N. Y.) 44.

That a complaint bears date two years subsequent to the other proceedings in the case, will be considered a mere clerical error, and not available. Powers v. David. 6 Ala. 9.

In Kentucky.-In an action of forcible entry aud detainer, matter in abatement only is not an available defence. Jones v. Overton, 4 Bibb. (Ky.) 234.

1. Watson v. Whitney, 23 Cal. 375; Henderson v. Allen, 23 Cal. 519; McGlynn v. Moore, 25 Cal. 348.

Where, in an action for the forcible detention of real estate, commenced and tried before a justice of the peace, and taken up by appeal, the defendant pleaded not guilty," held, that, although every material allegation in the petition, not specifically denied by the answer, should be taken as true, yet the instruction to the jury asked by the defendant should have been given; "that a plea of not guilty was a sufficient denial of the plaintiff's petition; and that it was sufficient to put the plaintiff upon proof of every material allegation set up in his petition. McKenney v. Hopkins, 20 Iowa, 495 s. p., Oleson v. Hendrickson, 12 Iowa, 222.

Where the complaintant, in a proceeding of forcible entry and detainer, alleged that the defendant entered upon the premises with force and strong hand, and disseized and dispossessed the plaintiff thereof, and with great force and strong hand continued to hold possession thereof, and to deforce and keep the

Pleading the general issue to a complaint, under the statute of forcible entry and detainer (Rev. Stat. 490, ch. 5), is a waiver of irregularities in the summons and notice. Falkner v. Beers, 2 Dougl. (Mich.) 117.

Denial that defendant "entered unlawfully" admits the entry, and tenders issue only on its unlawfulness. Leroux v. Murdock, 51 Cal. 541.

2. Townsend. Chapman, 45 Cal. 673; Powell v. Lane, 45 Cal. 677; Bird v. Fannon, 3 Head (Tenn.), 12; Russel v. Chambers, 43 Ga. 478; Paige v. Dodson, 46 Ga. 223; Nichols v. Chandler. 46 Ga. 479; Dawson v. Dawson, 17 Neb. 671; Brown v. Beatty, 76 Ala. 250; Poulam v. Sellers, 20 Ga. 228.

Where, to a statutory proceeding to dispossess an intruder, the defendant filed a counter-affidavit following the statute literally, except that he alleged that "he does in good faith claim a legal title to the possession," this was equivalent to a statement that he claimed the right of possession, and was sufficient; and the counter-affidavit was not demurable. Pratt v. Fountain, 73 Ga. 261.

Entry for the Purpose of Pre-emption. That land in dispute is a part of the public domain; that it has been drawn from entry and sale; and that the defendant, by the advice of his attorney and the government land-offices, entered upon the land for the purpose of securing a prior right to a homestead, and with a a bona fide intention to acquire such right as soon as the land be open for entry, are not facts sufficient to justify an entry upon the actual occupancy of another; nor are such facts a good defence to an action of unlawful detainer. Randall v. Falkner, 41 Cal. 242. Where, in the statutory proceeding to dispossess an intruder, defendants' coun

ter-affidavit alleged that he claimed the legal title to the possession, instead of that he claimed the right of possession, held, equivalent, and therefore not demurable. Pratt v. Fountain, 73 Ga. 261.

1. Dawson v. Dawson, 17 Neb. 671. Unlawful detainer cannot be maintained against a person who originally entered under a lease, but continues in possession under a contract for purchase. Brown v. Beatty, 76 Ala. 250.

In an

action of unlawful detainer against a tenant holding over, for the purpose of disproving the tenancy, the defendant may show that he entered as a purchaser, and not as a tenant; and this, whether the argument to purchase be good or bad. Klopper v. Killer, I Colo. 410.

2. Janson v. Brooks, 29 Cal. 214. 3. Gill v. Jones, 57 Miss. 367.

4. An action of unlawful detainer does not lie to recover possession of part of a railroad; as this would involve the right and duty of exercising franchises, and these are not lands and tenements,' within the statute. Fla. 147.

Gibbs v. Drew, 16

The rights of a plaintiff in forcible detainer, held, not to be affected by the fact that a railway company had, before the suit, surveyed a part of the premises, which part, after the suit was brought, had been condemned for a right of way. Lesher v. Sherwin, 86 Ill. 420

ma

5. In an action of unlawful detainer, brought against C., a vendee, by P., a vendor, who had given bond for title, taking three notes for the purchasemoney, the first being unpaid at turity and C. having gone into possession, proof that, before the first note fell due, P. had transferred the notes to L., and had procured the legal title to be vested in L., held, to be a good defence. Clymer v. Powell, 56 Miss. 672.

Contract to Re-purchase-A.'s land was sold-upon the foreclosure of a mortgage upon it, to O., who procured a sheriff's deed, subject to A.'s right to redeem for one year. A. agreed verbally with B., that B. should advance him money wherewith to redeem, and to receive deeds to the land from O. and A., and execute a bond to A. to reconvey within

a certain time upon the repayment. This contract was executed except as to the bond. B. sued A. in forcible entry and detainer, claiming that A. was a tenant at will, and had had due notice to quit. Held, that A. had a good defence, and that the title to the land was not involved. Jordan v. Walker, 52 Iowa, 647.

C.

ten

Statutory Change After Contract.-C. borrowed money of B., and gave his notes, secured by a trust deed. attorned to the trustee as his ant, and covenanted to immediately surrender possession upon sale by the trustee for default in payment of the notes. C. failed to keep his agreement, and, after sale by the trustee, was sued in an action of forcible entry and detainer, under Ill. Rev. Stat. 1874, § 535, passed subsequent to the Covenant. Held, that this statute did not impair the contract; that the validity of the prodeedings under the sale could not be questioned; and that ursury in the contract between C. and B. could not be shown. Chapin v. Billings, 91 Ill. 539.

Collusion to Obtain Tax Title.-Proof of collusion between a mortgagor of land and the holder of a tax title, to enable the latter to buy at the tax sale, and recover judgment in ejection, and obtain possession thereunder, rebuts the defence of such sale, judgment, and eviction when set up in proceedings of forcible entry brought by one claiming under the mortgagee, and entitles him to recover possession. Frazier v. Gates, 61 Ill. 180.

Where two parties claim title to a certain lot, and one takes possession and fences it, and the other shortly thereafter tears down the fence and takes forcible possession, held, that, in action of forcible entry and detainer by the former, the latter cannot defend by proof that the former took such possession for the purpose of obtaining the advantages of possession, and because he knew of defendant's claim of title and that he was intending to take possession. Coonradt v. Campbell, 25 Kan. 227. See Allen v. Tobias. 77 Ill. 169.

Husband and Wife.-A husband sued, with his wife, in forcible detainer, and, filing a joint and several answer defend

ing his possession by averments of her right, puts himself in the position of a privy for the purposes of the action. De la Mar v. Hurd, 4 Colo. 442.

It is no ground for a nonsuit, that the femme covert, or one not guilty, is sued in this action. The plaintiff may recover against such as he proves guilty. Alexander . Reed, 3 T. B. Mon. (Ky.) 246. Compliance With Order.-A writ of forcible entry and detainer is not barred by an order of a county court giving leave to build a mill dam, unless the statute has been strictly complied with. v. Coffey, 4 J. J. Marsh, 41.

Wolf

1. Gruenewald v. Schaales, 17 Mo. App. 324.

2. McLean v. Spratt, 20 Fla. 515.

In a suit by a landlord against a tenant, for forcible entry and detainer, a certificate of homestead entry granted to the tenant, cannot be interposed as a defence, because the title to the property cannot be tried in such proceedings, and the title so set up would be antagonistic to that of the landlord. Where, however, the tenant procures the title of his landlord either by direct conveyance or through the operation of the law, as by tax sale, it may be set up as a defence. Silvey v. Summer, 61 Mo. 253.

An answer, in an action against a tenant for unlawful detainer, which avers that a person not a party to a suit had formerly brought an action to quiet title to the demanded premises, and that such person was at the time in the actual possession of the premises, claiming title in fee thereto, is not ambiguous or uncertain. Douglas v. Dakin, 46 Cal.

49.

Where, under the landlord act of 1863, the tenant pleaded, to the jurisdiction of the alderman, that, since the demise, the premises have passed by sheriff's sale to a third person, to whom he had attorned, held, that the plea was fatally defective in not setting out that the sale was under a judgment against the landlord and passed his estate. Heritage v. Wilfong, 58 Pa. St. 137.

If upon the trial of a case of unlawful detainer, the defendant sets up title in himself, plaintiff may prove that the de8 C. of L.-II

fendant entered into the premises under a parol lease from himself, though the lease proved was to continue more than a year. Adams v. Martin, 8 Gratt. (Va.)

107.

3. In a suit by a landlord against his tenant, under section 13 of the forcible entry and detainer act, the tenant may show in defence that he was evicted by judgment in ejectment recovered against him by one D.. under whom he now holds; but it is essential that he show that notice of the ejectment suit was duly given to the landlord, proof of oral notice being sufficient. Wheelock v. Warschauer, 21 Cal. 309.

Where the land is sold at an execution sale, the tenant, if the execution debtor, may attorn to the purchaser, and he may resist the suit of such debtor, on a writ of forcible detainer, by proof of the sale and attornment. Bowser V. Bowser, 8 Humph. (Tenn.) 23.

If a tenant is evicted after notice to his landlord after threatened invasion by an adverse title, his tenancy ceases, and he is at liberty to take a lease from the successful plaintiff in ejectment, and an action of forcible entry cannot be maintained against such tenant by the first landlord. Steinback v. Krone, 36 Cal. 303.

4. Ogg v. Sheehan, 17 Neb. 323.

Where a tenant is sued for unlawful detainer, it is not necessary, in order to make out his defence, that he should show all the terms of the contract of rent; it is sufficient if he shows that he is in as the tenant of the plaintiff, for a term which is unexpired when the proceeding is instituted. If the holding for the entire term is, by the contract of lease, made to depend upon some act to be done by him before its commencement or during its continuance, the plaintiff must show this or he will be deemed to have waived it. Rainey v. Cappo, 22 Ala. 288.

In an action for forcible entry and detainer, the fact that the plaintiff's lease, under which he was in possession at the time of the defendant's entry, expired before the trial of the action, is no bar to a recovery. Townsend v. Van Aspen, 38 Ala. 572.

1. In an action of unlawful detainer against a person admitting that he signed a lease from plaintiff, but claiming to have signed it through mistake, and to have been put in possession by plaintiff's intestate under an executory contract of purchase, with the terms of which he had complied, held, that this defence was available if the mistake was induced by the lessor by misrepresentations amounting to fraud. Locke v. Frasher, 79 Va. 409; Alderson . Miller, 15 Gratt. (Va.) 279. But see Simons 2. Marshall, 3 G.

Gr. (Iowa) 502.

2. Mattingly v. Lancaster, 2 A. K. Marsh. (Ky.) 30; Helen 7. Slader, 1 A. K. Marsh. (Ky.) 320; Hay v. Connelly, I A. K. Marsh. (Ky.) 393; Nelson v. Cox, 2 A. K. Marsh. (Ky.) 150; Gray v. Gray, 3 Litt. (Ky.) 465; Norton v. Sanders, 7 J. J. Marsh. (Ky.) 12; Quertemus v. Breckinridge, 5 Dana (Ky.), 125; Ecklar v. Ecklar, 3 B. Mon. (Ky.) 387: Kirk v. Taylor, 8 B. Mon. (Ky.) 262; Goldsberry v. Bishop, 2 Duv. (Ky.) 143. But in McMurty v. Adams, 3 Bush. (Ky.) 70, in which it was held that, under $501 of the Civil Code, to maintain forcible detainer," it is not material whether the tenant received possession of the demised premises from his landlord or became his tenant after obtaining possession of them.

3. In an action by an alleged landlord against a tenant, for unlawful detention of property, the defendant may show that the real relation between the parties is that of mortgagor and mortgagee. Steele v. Bond, 28 Minn. 267.

Contract to Lease to Another.-A, being tenant of B for a term ending June 30, 1866, cannot reply to a proceeding instituted against him by B to obtain restitution of the possession of the premises, that B has made a contract of lease of the same to C, to commence July 1, 1866. Gelston v. Sigmund, 27 Ind. 345.

Vendor and Vendee.-In forcible detainer by a vendor against a purchaser in possession under the contract, who has failed to comply therewith, the purchaser is estopped to deny the vendor's right to possession. Lesher . Sherwin, 86 Ill.

and deliver up the premises to the lessor or his attorney, peaceably and quietly, at the end of the term, and that the lessor may enter to view and make improvements, and to expel the lessee if he shall fail to pay the rent agreed upon," and during the lease the lessee builds on the premises a cottage, and after the expiration of the lease the lessee continues, with the assent of the lessor, to occupy the premises, but thereafter makes de fault in the payment of rent, and then repudiates the lease and disclaims to hold under his landlord, such lessee, by the erection of his improvements on the leased premises, in the absence of any evidence of failure of title of his landlord, has not such an interest therein that the action of forcible detainer against him will not lie. Douglass v. Anderson, 28 Kan. 262.

To a landlord's suit for unlawful detainer, the tenant set up a counter-claim for damages resulting from the dilapidated condition of the leased premises. Held, that a demurrer to the counterclaim was properly sustained. Van Every v. Ogg, 59 Cal. 563.

In an action of forcible entry and detainer, where defendant pleaded that he had erected a bake-oven and building on the lot, at a cost of $500, under an agree ment with the lot-owner that he would pay him their actual cost at any time he desired to give up possession, and that in pursuance of said contract he offered to take $400 for said improvements, which the lot-owner refused to pay, held, upon the facts stated, not to constitute a defence. Connolly v. Giddings (Neb.), 37 N. W. Rep. 939.

To an action of unlawful detainer, defendant answered that he and plaintiff had, since the commencement of the suit, submitted the matter in controversy to arbitration, on agreement that plaintiff should take defendant's furniture at a price assessed by the arbitrators, pay him back the excess, if any, over the rent due. upon which the defendant was to give up the furniture to him; also, that the arbitrators had acted, and found what the excess was, and that defendant was ready to carry out his part of the agreement. The answer also asked for specific per

2

formance, and a transfer of the cause to the equity docket. Held, not good as a counter-claim or as a bill for specific performance. Collins v. Karatopsky, 36 Ark. 316.

Verbal Plea Good. It seems that the traverse to the indictment, under the second section of the New York statute of session 11, ch. 6, need not be in writing. The People v. Anthony, 4 Johns. (N. Y.) 198.

1. Grice v. Ferguson, 1 Stew. (Ala.) 36; Wright v. Lyle, 4 Ala. 112; Payne v. Martin, I Stew. (Ala.) 407; Snoddy v. Watt, 9 Ala. 609; Matlock v. Thompson, 18 Ala. 600; Houghton v. Potter, 23 N. J. L. (3 Zab.) 338; Jarvis v. Hamilton, 16 Wis. 574.

2. No Jury to Assess Damages on Nonsuit. In a nonsuited action of unlawful detainer, the defendant cannot call a jury solely to assess damages; his remedy is on the plaintiff's bond. Strong v. Whatley, 23 Ark. 76.

The Ohio Act of 1831 concerning forcible entry and detainer provides for a jury in the court of common pleas to assess the rents and damages only when the judgment of a justice is affirmed there upon certiorari. Aubrey v. Almy, 4 Ohio St. 524.

Jurors' Oath. It is sufficient if the justice's record state that the jury were sworn "according to law;" but if the oath be set out, and do not conform to the statute, it is bad. Graham v. Busby, 34 Miss. 272; Wilson v. Pugh, 32 Miss. 196. See Holt v. Mills, 12 Miss. (4 Smed. & M.)

110.

A recital in the record that the jury were duly sworn to inquire of the forcible detainer, is sufficient, without stating that they were to try the cause according to the law and to the evidence. M'Rae v. Tillman, 6 Ala. 486.

Sheriff's Return.-It is not error for the sheriff, in an action for unlawful detainer, to return a panel of 24 jurors if 12 only are sworn on the jury. Adams v. Decker, 11 N. J. L. (6 Hals.) 84.

In forcible entry and detainer, the justice must enter on his docket the return

of the sheriff to the venire. Prickett v. Prickett, 12 N. J. L. (7 Hals.) 186.

In an action of unlawful entry and detainer, under W. Va. Code, ch. 50, $$ 211-218, it is proper that some answer or plea be entered or filed by the defendant if he appears and makes defence; and if the justice renders judgment in favor of the plaintiff, and the defendant appeals to the circuit court, if no answer or plea appears by the record to have been entered or filed before the justice or in the circuit court, it is error to swear the jury "to try the matter in difference between the parties." Supervisors v. Ellison, 8 W. Va. 308.

3. People v. Reed, 11 Wend. (N.Y.) 157.

4. In an indictment under the 12th section, ch. 64, Bat. Rev., for removing a part of the crop, etc., when there is no conflicting testimony as to the notice of the lien, it is error for the presiding judge to refuse to charge that, if the jury believe the defendants had no notice of the lessor's lien, they would not be guilty. When on trial, it was proved that the defendants had a license from the tenant, and such fact is not charged in the indictment, the judgment will be arrested. State v. Seers, 71 N. Car. 295.

J

An instruction given for the plaintiff, in an action of forcible entry and detainer, which, by its terms, cuts off all consideration of an actual adverse possession in the opposite party, is erroneous. Blanchard v. Pratt, 37 Ill. 243.

In an action of forcible entry against one of several persons, an instruction that, if the jury find that the plaintiff was forcibly ousted from the premises, they will find for the plaintiff, is erroneous unless by the defendant" be inserted after "ousted."

580.

Ross v. Roadhouse, 36 Cal.

5. The Question, What Acts Constitute Possession is for the court; whether such acts have been done, is a question for the jury. And the court may, under proper instruction, leave the whole question to the jury where there is any evidence tending to show bona fide prior possession by plaintiff. DeGraw v. Prior, 60 Mo. 56.