It is proper, in an action of forcible entry and detainer by the purchaser of certain property, against a lessee in possession, to submit to the jury the question whether the plaintiff, by proper conveyances, has succeeded to the rights and remedies of the lessor. Gillett v. Mathews, 45 Mo. 307.

It is error for the judge to rule on the trial that it was for the jury to say whether a barn, the eaves of which projected over the plaintiff's close, was a suitable structure, and of reasonable dimensions for a fence, and that if it was, its erection was not a trespass, if it came onto the plaintiff's land no more than a fence of ordinary width would do. Smith v. Smith, 110 Mass. 302.

A judgment in ejectment is conclusive evidence that the defendant has been in possession; and if he is removed by the hab. fa., and is again bound on the land, whether his last entry was in his own right or that of another, a jury may infer that it was tortious, and, if so, he is liable to a writ of forcible entry and detainer. Kercheval v. Ambler, 4 Dana (Ky.), 166.

On an indictment under the New York Statute of Session II, ch. 6, to prevent forcible entries and detainers, the jury may find the defendant guilty of the detainer only. Dutton v. Tracy, 4 Conn. 79. 1. Failure to Convene on an Adjourn Day. In a proceeding of forcible entry and detainer, the court is constituted and then adjourns to a day certain. The court failing to meet on the day to which it is adjourned, the cause is not discontinued, but stands adjourned, by operation of law, to the next term of the county court. Mann v. Gwinn, 8 Gratt. (Va.) 58.

Removal to Circuit Court.-A case of unlawful detainer which has been pending in a county court more than a year may be removed, on motion, to the circuit, and placed there at the head of the civil causes. Harrison v. Middleton, 11 Gratt. (Va.) 527. Failure of the Jury to Agree.-A jury, on a trial for forcible entry and detainer under the Connecticut statute, after having the cause committed to them for two days

under consideration, and having come into court three times, and again retired, declared in open court that they never could agree. The court thereupon dismissed the jury, and caused another to be summoned and empanelled. It was held that such proceedings were legal. Dutton v. Tracy, 4 Conn. 79.

Release of Security.-On trying a traverse of forcible detainer, the court cannot release the security given by the traverser to the justice and take a new bond and security. Jack v. Carneal, 2 A. K. Marsh. (Ky.) 518; Holeman v. Carneal, 2 A. K. Marsh. (Ky.) 602.

2. A variance between the complaint and the testimony, in an action of forcible entry and detainer, is immaterial; and if the complaint charges one offence and the testimony makes another, the court should direct the complaint to be amended so as to conform to the testimony. If this be not done, the judgment will not, for that reason alone, be reversed on appeal; but the court below will be directed to cause the complaint to be amended, if the record shows that upon request it refused to do so; but not otherwise. Shelby v. Houston, 38 Cal. 410.

3. A complaint for forcible entry and detainer, in an action commenced in a justice's court, should not be stricken from the files after the cause has been removed to the city court of Mobile because of a variance between it and the justice's indorsement, on the summons, of the cause of action. Van Asper. v. Townsend, 36 Ala. 582.

4. Where, on a writ of forcible detainer, judgment was rendered for the plaintiff, but judgment for restitution was omitted, the circuit court may amend, at a subsequent term, by entering judgment for restitution. Norton v. Sanders, 7 J. J. Marsh. (Ky.) 12.

5. A warrant, in an action of forcible entry and detainer, after traverse, is not amendable by introducing a number of new parties plaintiff. Power v. Sutherland, I Duv. (Ky.) 151. An affidavit that the tenant does not

hold under one cannot be amended to show that he does not hold under two joint owners. Lockett v. Usry, 28 Ga. 345.

1. Where defendant was wrongfully dispossessed under a writ in an action for unlawful detainer, held, that the action could not be changed by amendment so as to allow the plaintiff to have judgment in ejectment, although the material allegations in ejectment were embraced in the complaint, and proved. Necklace v. West, 33 Ark. 682.

2. Where a complaint was filed under the forcible entry and detainer act, containing a statement of the estate of the complainant in the premises, and, upon the trial, a motion was made by complainant's counsel to strike out the statement, which motion was allowed, held (1) that there was no power in the justice to order the amendment, and the complaint remains in legal contemplation, as when filed, and so there is no defect in the complaint; (2) that, inasmuch as, by force of the construction heretofore given to § 23 of the act, proof of the estate of the complainant was no part of his case; therefore, that the fact of the allowance of the amendment could not affect the proof in the case, and no presumption arises therefrom that legal proof of complainant's case was not offered at the trial. State v. Bayley, 42 N. J. L. 132.

3. Moran. Eldridge, 2 W. Va. 574; Havins v. Bickford, 9 Humph. (Tenn.) 673.

Where the defendant, in a proceeding of unlawful detainer, dies pending an appeal by the plaintiff below, the cause cannot be revived. Chapman v. Dunlap, 4 Gratt. (Va.) 86. But see Brewington v.

Stephens, 31 Mo. 38, in which it is held that an action of forcible entry and detainer does not abate by the death of the defendant. Since it is an action for damages, and also for the possession of land, it should be continued against the heirs and the administrator. If the heirs have no interest in the premises, they can disclaim, and the suit can proceed against the administrator.

4. Carlisle 7. Rawlings, 18 Mo. 166. 5. Casey 7. King, 98 Mass. 503. 6. Gallagher v. Connell (Neb.), 36 N. W. Rep. 566.

7. Latimer v. Woodward, 2 Dougl. (Mich.) 368; Davis v. Ingersoll, 2 Dougl. (Mich.) 372, note.

The statute of 1809-10 dispensing with proof of actual force in certain cases of forcible entry and detainer is not retrospective, but prospective only. Reed v. Rawson, 2 Litt. (Ky.) 189.

8. Stiles v. Homer, 21 Conn. 507.

9. Hoffman v. Harrington, 25 Mich. 146. 10. In a suit under the act concerning forcible entry and unlawful detainer, for entry upon land claimed under the act of 1852, the plaintiff must prove that the defendant entered upon land within the lines described in the affidavit required by said act; and testimony of witnesses that the entry was within the lines of "plaintiff's claim," as pointed out by him, without identifying these with the lines of the affidavit, is sufficient to sustain the action. Cummins v. Scott, 20 Cal. 83.

11. Where a plaintiff, in unlawful detainer, relies on a judgment of a justice of the peace to establish his title, the jurisdiction of the justice as to the subjectmatter of the suit in which the judgment was rendered must be shown.

It is not

sufficient that the judgment appears to be in debt, and for an amount of which the justice has jurisdiction. But, if the record does not show that the justice had jurisdiction, the fact may be proved by evidence aliunde. Liss v. Wilcoxen, 2 Colo. Ter. 85.

1. In a suit by a landlord against his tenant, under section 13 of the Act of Forcible Entry and Detainer. the plaintiff must show that before suit brought he had made a written demand for possession; also that he had terminated the tenancy by notice to quit. Sullivan v. Cary, 17 Cal. 80.

In forcible entry and detainer by purchaser, under a mortgage against the mortgagor, the plaintiff must not only prove a demand upon the defendant, but that he refused or neglected to surrender possession: and the latter fact is not to be presumed from the fact of defendant's possession before the demand. Hersey v. Westover, II Ill. App. 197.

2. Murphy v. Dwyer, 11 Ill. App. 246; Reed v. Grant, 4 Cal. 176.

3. If tenancy of two or more defendants is averred in the complaint, such tenancy should be proved as averred. Snedeker v. Quick, 12 N. J. L. (7 Hals.)

129.

K. executed to H. a lease of property, which H. had been occupying as tenant of K.'s grantor, the term to continue to January 1, 1875. K. sold to L. In forcible detainer by L., against H.. held, that L. need not prove a delivery of lease to H., nor adduce further evidence of attornment than this promise of H., with knowledge of the conveyance from K. to L. Hayes v. Lawver, 83 Ill. 182.

An answer that the defendant occupies, etc., under a written lease from the plaintiff for a term unexpired, will not oblige the plaintiff, replying in rebuttal on a breach of a clause therein-in this instance against sub-letting-to produce the lease, if he had already made a prima facie case. Zink v. Wilson, 3 W. Va. 503. 4. Stiles v. Homer, 21 Conn. 507.

But

In an action for unlawful detainer, brought under Minnesota Gen. Stat. 1878, ch. 84, § 11, in the municipal court of St. Paul, the plaintiff cannot obtain judgment of restitution simply upon the defendant's default to answer, but must prove his right to restitution. Hennessey v. Penderson, 28 Minn. 461.

Pleading and Proof.-Under the plea of "not guilty," plaintiff must prove every fact necessary to enable him to recover. Gallagher v. Connell (Neb.), 36 N. W. Rep. 566.

In an action of forcible entry and detainer, the question of title cannot, under the laws of Missouri, be considered. All that devolves on the plaintiff in such action is to show that he was lawfully possessed of the premises, and that the defendant unlawfully entered and detained the same. Goerges v. Hufschmidt, 44 Mo. 179.

5. Dutton v. Tracy, 4 Conn. 79; Fortier v. Ballance, 10 Ill. 41; Wheelen v. Fish, 2 Ill. App. 447; Walls v. Endel, 17 Fla. 478.

Upon an inquisition of forcible entry and detainer, proof of an equitable title in the prosecutor is irrelevant and improper. Mansfield v. Duvall, 2 Bibb

(Ky.), 582.

In an action for forcible entry and detainer, title cannot be given in evidence by the defendant to prevent restitution. Respublica v. Schryber, 1 Dall. (Pa.) 68.

Neither title nor right of possession being involved in Nevada, it is erroneous to admit quitclaim deeds in evidence as tending to show possession. Lachman v. Barnett, 16 Nev. 154.

Under the statute providing for ejectment for forcible entry and detainer, the complainant in such action need not ad duce evidence to his title. He must show that defendant entered the premises, and detained the possession of the same from the plaintiff. Bell v. Cowan, 34 Mo. 251.

Land Sold as a Lot, and Not as a Street. -The authorities of a town put A into possession of a piece of land, an angle

formed by the intersection of two streets, which A held for thirty years, when the town sold it to B, and, after ten days' notice to A, put him into possession by force. A sued B and the town in an action of forcible entry and detainer. Held, that the deed from the town to B was admissible in evidence to show that the land was sold as a lot, and not as a street, etc., and that therefore the town, after the sale to B, had no right to dispossess him. (Tenn.) 501.

Dennis v. Rainey, 8 Bax.

In forcible entry, it appearing that plaintiff has never made demand for possession, as required by Code Civil Proc., § 1160, subd. 2, and the court having rightly found that plaintiff was never in the peaceable possession of the premises." and that defendant did not, with force or violence, or with strong hand, enter upon or break into said building or premises, the admission in evidence of a deed of the premises from defendant to another, made before the commission of the alleged wrong, if error, is harmless, and no ground for reversal of judgment. Tivner v. Monahan (Cal.), 18 Pac. Rep. 144.

Wis. 650.

1. Conaway v. Gore, 27 Kan. 122.

In an action for a forcible detainer, a lease to plaintiff under which he had formally been in possession, held, admissible to show the extent of such possession at the time of the alleged forcible detainer. Murphy v. Snyder, 67 Cal. 451. Where actual possession of a part of premises is shown to be in the plaintiff, in an action of forcible entry and detainer the plaintiff's deed for the premises is proper evidence for the purpose of showing the extent of his possession. Huftalin v. Misner, 70 Ill. 205.

In an action for forcible entry and detainer, a return of an officer upon an execution, in a suit to which defendants were not parties, commanding the officer to put the complainant into possession of the

lands in controversy, is prima facie evidence of the facts stated in it, as against strangers, though not admissible to prove the title of the complainant. Dutton v. Tracy, 4 Conn. 79.

Where the plaintiff, after introducing evidence tending to show an actual possession of the demanded premises by C., up to the time of the alleged forcible entry, introduced in evidence, against the defendant's objection thereto, a deed of the premises from C. to plaintiff, dated the month prior to said entry, for the avowed purpose of showing that at the time of such entry the apparent possession of the premises by C. was the possession of plaintiff. Held, that there was no error in admitting the deed; and that the fact sought to be established by the deed might properly have been proved by parol evidence. Morgan v. Higgins, 37 Cal. 59.

Where, in an action of forcible entry and detainer against a married woman, the record of a judgment in ejectment against her husband, and of her expulsion thereunder, was admitted in evidence against her objection. Held, that it was erroneous to exclude testimony that she was in possession under a homestead right in herself and children, as widow of a former husband, and independent of any right of the husband, defendant in the ejectment suit. Morrissey v. Stephenson 86 Ill 344.

In California, a deed of the premises is not admissible in evidence, in an action of forcible entry and detainer, for the purpose of showing possession in the plaintiff at the time of the alleged entry of defendant; for a deed shows transfer of title to the grantee, but does not tend to show actual transfer of possession. Nor is it admissible to show a right of possession in the plaintiff: for the right of possession cannot be litigated in proceedings of forcible entry. Sanchez v. Loureyro, 46 Cal. 641.

2. Slate 7. Eisenmeyer, 94 Ill. 96.

The defendant, having entered peaceably, not denying the fact of plaintiff's prior possession, but claiming under an entry certificate as a homestead, he cannot adduce evidence of such entry certificate for the purpose of showing that his subsequent refusal to surrender the possession on demand was not unlawful. Weldon v. Schlosser, 74 Ala. 355.

1. Letters of Agent in Possession.The plaintiff in forcible entry and detainer may prove his possession of the premises by letters of his agents, received in the usual course of the mail, showing their possession as his agents. Julian v. Lacey, 14 Mo. 434.

Evidence of Former Possession.-On the trial of a complaint for a forcible entry and detainer, the defendants offered evidence to prove that the former owner of the land in question, under whom they claimed title, had been in undisputed possession thereof at one time during his ownership, and within eight years before the commission of the acts complained of. Held, that such evidence was admissible, though liable to be deprived of all force by evidence of possession acquired by the complainant subsequently. Hale v. Wiggins, 33 Conn. 101.

The complainant in forcible entry and detainer offered in evidence a lease of a barn (which barn, it was admitted, formerly stood on the land in question), executed to him by one of the defendants more than sixteen years before. It was held that it was admissible, though of little weight, to show possession of the complainant at the time. Dutton v. Tracy, 4 Conn. 79.

Defence of Scrambling Possession. The defendant cannot, for the purpose of showing that the plaintiff had only a scrambling possession, introduce evidence to show that, during the whole period of the plaintiff's possession, third persons, with whom the defendants were not in privity, were stopping near the demised premises, awaiting an opportunity to take possession, when they could do so without force: but he may prove that, before the entry complained or, he had made attempts to take possesion, but was prevented by an exhibition of force by the plaintiff. Nor where the plaintiff entered without resistance, and remained for some weeks in the undisturbed possession, can the defendant prove that before his entry they had, under a claim of title, inclosed and occupied the premises, and were thus occupying it when he entered. Bowers v. Cherokee Bob, 45 Cal. 495.

Knowledge of Entry of Defendant.-In a case of forcible entry and detainer against G., F., and N.,the plaintiff claimed that he had been in possession of the premises in question, his own right, for

more than five years next before the alleged forcible entry, and on his cross-examination testified that, when he was informed by F. that said F. and G. had previously driven his (the plaintiff's) cattle off from the land in controversy, he informed F. that, if that was so, he would be sued. Held, that the plaintiff might be further inquired of as to his knowledge that G, before that time, had levied an execution on said premises, as tending to show that the plaintiff's knowledge of the acts of the defendants, from which he might infer that the defendants had made an entry upon said premises before said conversation. Gray v. Finch, 23 Conn.495.

The question whether the complainant was in possession of the premises in controversy, with the knowledge and consent of the defendant, is material and important; but evidence upon the question, to be admissible, must clearly show such knowledge. Healy v. Russell, 35 Conn. 24.

Evidence of Possession on Plea of Not Guilty. In a suit for forcible entry, where the defendant pleads not guilty, the issue is upon the defendant's forcible entry; therefore, records of other suits, between other parties, with respect to the property or possession, are prima facie irrelevant. To show relevancy, the privity or connection between the parties to the records and those before the court should first be suggested or shown. Horsefield v. Adams. 10 Ala. 9.

2. Under an indictment for forcible entry and detainer, evidence is admissible that the defendant, in forcibly entering, etc., assaulted and beat the party in possession. Higgins . State, 7 Ind. 549.

The owner of land is liable, in forcible entry and detainer, if he makes a forcible entry upon the actual possession of the plaintiff. Therefore, it is not error to refuse to allow the defendant to prove a mortgage of the premises, and that he entered under the mortgagee. Huftalin v. Misner, 70 Ill. 205.

Evidence Negativing Collusion.-Where the petition charged that the defendant obtained possession through collusion with a tenant of the plaintiff, held, that proof negativing the averment of collusion was competent, and its competency was in no way affected by the fact of plaintiff's presence or absence when defendant obtained possession. Smith v. Meyers, 45 Mo. 434.