damages are given is punishable criminally. In Michigan, the right to increase damages extends only to injuries directly incident to the forcible entry and detainer, and not to those caused by acts of mere trespass, nor to the value of personal property within the premises entered and detained. Such treble damages may be given in California, even though not claimed in the complaint.3 And, in Georgia, it is held that a tenant cannot withdraw his claim so as to remove his liability for increased rent.4 12. Judgment. (a) What Judgment may be Rendered. In some States the action of forcible entry and detainer is given for the sole object of regaining a possession which has been unlawfully invaded, and no judgment for damages in such actions can be given, while in others the judgment may be for damages or for both damages and restitution of possession. Restitution may be ordered, even though the defendant has not appeared in the action; and a forfeiture of a lease will support such a judg 1. In an action by a tenant against his landlord, for forcibly entering upon, and ejecting the tenant from, the leased premises, such actions being punishable as criminal offences, actual compensatory damages only are recoverable; and the motive with which they are done is immaterial, and not proper to be pleaded or proved. Moyer v. Gordon (Ind.), 113 Ind. 282. 2. Shaw v. Hoffman, 25 Mich. 162. The plaintiff, being in possession of a certain building, the defendant forcibly entered it, ejected him therefrom, and forcibly and with strong hand held him out; and also at the same time took and carried away, and converted to his own use, certain specified articles of personal property belonging to the plaintiff. The jary, on general issue pleaded, rendered a general verdict for the plaintiff for $650. On motion for treble damages under the act allowing such damages. held, that said act applied only to such damages as resulted from the eviction and detainer, and refused the motion. Thayer 7. Sherlock, 4 Mich. 173. In an action by a complainant in forcible entry and detainer, for treble damages, under Michigan Comp. Laws, S 6717, only what the jury specifically reports as damages' can be trebled. This cannot include losses resulting to the complaintant from the breach of the defendant's express promise to surrender possession; and it is doubtful if it covers loss of profits for goods which the complainant was prevented from exposing for sale on the premises. Houser v. Melcher, 40 Mich. 185. To such action for treble damages, the provision of Mich. Comp. Laws, ch. 185, for general pleading, does not apply. Houser v. Melcher, 40 Mich. 185. 3. Tewksbury v. O'Connell, 25 Cal.262. 4. Parker 7. Beeman, 28 Ga. 475. 5. Poe v. Bradley, 44 Ark. 500; Robinson v. Crummer. 10 Ill. (5 Gilm.) 218. In an action of forcible entry and detainer, the judgment should be only for possession and costs, and not for rents. Walker v. McGill, 40 Ark. 38. Procedure. In an unlawful detainer, where it appears that the plaintiff was in possession when the action was brought, judgment should be for defendant. Hurst v. Dulany (Va.). 5 S. E. Rep. 802. If the plaintiff, in an action of forcible entry and detainer, dismiss his suit after the execution of the writ, as he has a right to do, the court ought to render judgment that the defendant be restored to the possession of the improvement, and for costs. Fleeman v. Horen, 8 Ark. 353. In Tennessee, a writ of restitution cannot be ordered on conviction in a crimi nal process. State v. Walker, 5 Sneed (Tenn.), 259. 6. Farwell v. Easton, 63 Mo. 446; Kingman v. Abington, 56 Mo. 46; King 7. Lawson, 98 Mass. 309. And see Johnson v. Tuggle, 27 Miss. 836; Atchley v. Latham, 39 A. K.Marsh. (Ky.) 164;Spear v. Lomax, 42 Ala. 576; Gayle v. Overton, 1 J. J. Marsh. (Ky.) 549. 7. Under the Civil Code, where the traverser of a verdict of a jury in a case of forcible entry and detainer fails to appear when the cause is called for trial, a judgment for possession may be rendered in favor of the traversee, although no issue on the traverse was joined. Dibble v. Porter, 1 Duv, (Ky.) 190. ment.1 In New York, the judgment of restitution may also impose a fine, but it is not always necessary that it should do so.2 A joint judgment may be entered against defendants acting jointly.3 Where the estate of the plaintiff terminates during the pendency of the action, he is still entitled to judgment for his damages and costs.4 But a plaintiff can only recover for what he had been dispossessed of before the commencement of the action; and, in such action, judgment cannot be rendered against the surety on defendant's appeal bond. The general rule is that no judgment can be given for anything not asked for in the complaint or warrant. (b) Form of.-A regular judgment must be entered; an entry by the justice, in his docket, after the verdict, of "judgment given accordingly," is not sufficient. And it must describe the land so 1. In an action under Minn.Gen. Stat., ch. 84, commenced Feb. 10, 1879, the finding was that on Jan. 7, 1879. plaintiff was, had since been, and then was, owner in fee of certain premises; that defendant wrongfully and unlawfully was detaining the same from plaintiff, who was entitled to the immediate possession thereof, in that on or about said January 7th plaintiff leased said premises to the defendant for the term of one month from that day, defendant agreeing to pay $12 as rent for said term in advance-that is, on said January 7th; that defendant entered into possession under said lease, but had paid no part of the rent. Held, that this finding entitled plaintiff to restitution of said premises under section II of the act. Wright v. Gribble, 26 Minn 99. 2. On an indictment under the second section of the New York statute of session II, ch. 6, to prevent forcible entries and detainers, a fine is required to be imposed on a party only where there is a conviction, upon view, according to the first section of the act. People v. Anthony, 4 Johns. (N. Y.) 193. The supreme court, on awarding restitution, is not required by statute to impose a fine. People. Runkel, 9 Johns. (N. Y.) 147. 3. In a proceeding under the Missouri statute, where one defendant comes into possession subsequently to the other, and holds for a short time, a joint judgment for the rents and profits is not improper, if they have been acting in concert to hold as agents of a third party so as to shift the burden of proof of title. Kingman . Abington, 56 Mo. 46. In an action against a tenant and his sub-tenants for unlawful detainer, judg ment was rendered by the San Francisco court against the sub-tenants for restitution, and afterwards against the tenant for treble damages. Held, not to be a compliance with the statute, and therefore erroneous, the court being one of special and limited jurisdiction. Iburg v. Fitch, 57 Cal. 189. 4. Where a plaintiff in forcible entry and detainer had a good cause of action when the suit was commenced, but his own tenancy, which was for years, terminated during the pendency of action, held. that he was entitled to costs and such a judgment as would give him the benefit of his recognizance and rent until his estate terminated. King v. Lawson, 98 Mass. 309. 5. Upon the trial of a case of forcible entry and detainer, it appeared that the defendant took forcible possession of a part of the plaintiff's land before the commencement of the suit, and part afterwards. Held, that in this proceeding the plaintiff could recover only so much of the land as he was dispossessed of before suit brought. White v. Suttle, 11 Humph. (Tenn.) 449. 6. Gruenewald 7. Schaales, 17 Mo. App. 324. 7. Feedler v. Schroeder, 59 Mo. 364; Gayle v. Overton, I J. J. Marsh. (Ky.) 549. In an action of unlawful entry, where no demand for rent is set up in the complaint, it is error to render judgment for rent. Johnson v. Tuggle, 27 Miss. 836. The plaintiff in forcible entry and detainer may recover according to his proof, although it be less than set forth in his declaration. Atchley v. Latham, 3 A. K. Marsh. (Ky.) 164. 8. Crane v. Dod, 2 N. J. L. 340; and see Weller v. Parke, 3 N. J. L. 661; Cowman v. Barber. 3 N. J. L. 688; Kerr. v. Phillips, 5 N. J. L. 818. An entry in the following words: "Parties appeared ready for trial. After hear that it can be identified as that mentioned in the complaint,1 though a defective description in the judgment may be aided by reference to a sufficient description in the complaint. (c) Costs.-The successful party should have judgment for costs; and in proceedings of this character they are to be taxed by the same rules as when before circuit court commissioners or other officers having jurisdiction of such cases.4 (d) Effect and Conclusiveness of.-The judgment in forcible entry and detainer is conclusive as to all matters necessarily involved in and decided by the action; as, the right to possession at the time of the entry, and the force, and, in another class of cases, the relation of landlord and tenant, and the wrongful holding over; And a judgment of a justice of the peace is subject to the ing the evidence, the court declares in favor of the plaintiff against the defendant. Costs taxed to defendant. $6.85.' was held to be an insufficient recital of judgment for the restitution of premises. Allen v. Corlew, 10 Kan. 70. A judgment thereon that the plaintiff have a restitution of the messuages, lands, and tenements, etc., cannot be supported. Applegate v. Applegate, 16 N. J. L. 321. In an action of unlawful detainer against a tenant holding over after expiration of his term, the jury in a justice's court found in favor of the plaintiff." and the justice merely made an entry that “The court renders judgment according to the verdict." Held, that there was no judgment. Swift v. Cornes, 20 Wis 397. But see Clay v. Clay, 7 Tex. 250, in which it was held that, in a case of forcible entry and detainer before a justice, where the jury returned a verdict for the plaintiff, and the justice made an entry on his docket, opposite to the ver dict, of Judgment rendered, 17th April, 1849." there was a sufficient entry of judgment. 1. Thiman . Meier, 25 Mo. App. 306. 2. House v. Camp. 32 Ala. 541. 3. Waiker 7. McGill, 40 Ark. 38; Fleeman v. Horen, 8 Ark. 353; Allen 2. Corlew; 10 Kan. 10; Poe v. Bradley, 44 Ark. 500; King v. Lawson, 98 Mass. 309. 4. Dibell . Brinckerhoff, 22 Mich. 371. A Charge for Constables' Fees for attending on a jury, in an action of forcible entry and detainer, is not a legal charge. Smith v. Williamson, 11 N. J. L. 313. In New York.-The complainant, on an award of restitution in his favor, is not entitled to recover attorney and counsel fees as part of his costs and expenses authorized to be assessed in his favor by section 14. People v. Townsend, 6 How. (N. Y.) Pr. 178. A certificate of the payment of costs, and securities given for further costs, is sufficient without any bond for condemnation money, in forcible entry and detainer cases founded on section 15 of the 9th division of the Penal Code. Taylor v. Gay, 20 Ga. 77. Disregarding Errors.-An affidavit, on motion in the supreme court for a retaxation of costs in proceedings for forcible entry and detainer commencing before a county judge, and brought to the supreme court by certiorari, is not deemed asmade in the original proceeding, within section 471 of the Code; and therefore an error in entitling it in the county court instead of in the supreme court may be disregarded. People v. Townsend, 6 How. (N. Y.) Pr. 178. 5. A judgment for restitution, in forcible entry and detainer, for part of a tract of land, is conclusive of the right of possession, at the date of such entry, as to the whole tract; and, when the restitution is made, the status quo is restored, and all constructive possession arising out of the defendant's actual possession under color of title is extinguished. Bradley 2. West, 68 Mo. 69. The rule that a judgment, on a plea in abatement, is final in an action for specific recovery of land or goods, applies to an action under the Illinois forcible entry law. Steele v. Grand Trunk Junction R. Co., 20 Ill. App. 366. The issue embraced in a suit for the forcible entry and detainer of certain premises cannot be retried after judgment, because the subsequent suit may embrace premises not included in the first. The consequences of the first judgment cannot be avoided by a mere enlargement of the claim. Harvie v. Turner, 46 Mo. 444. The record of conviction, under the first section of the New York act of ses same rules as those of the higher courts. But a judgment is not conclusive as to anything not contained within the issues, and is no bar to an action for anything not necessarily settled and decided thereby.2 13. Enforcement of the Judgment.-(a) Execution.-It would seem that a judgment for damages in forcible entry and detainer can be collected by execution, the same as any judgment for money. only.3 (b) Restitution of Possession. - Restitution of possession of premises will be awarded one whose peaceable possession was forcibly interfered with, without regard to the question whether the defendant had or had not any rights in the property. And sion 11, ch. 6, 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. Where, by the contract of partnership, the committee was to have possession of the properties of all the contracting companies for the space of three years, and an action of unlawful detainer was brought by one of the companies to recover its property at the end of two years, held, that the contract was, as to the remainer of the term, unexecuted, and could be repudiated as ultra vires. Mallory v. Hananer Oil-works (Tenn.), 20 Am. & Eng. Corp. Cas. 478; s. c., 8 S. W. Rep. 396. A judgment for plaintiff, in an action of unlawful detainer, is conclusive as to the existence of the relation of landlord and tenant, and as to defendant's wrongful holding over. Norwood & Kirby, 70 Ala. 397: 1. A justice's judgment in a case of forcible entry, under statute March 13. 1853, art. 19. is a judgment within the Code. 511, and, as such, may be reversed, vacated, or modified by the court of common pleas. Kelly v. Nichols, 10 Ohio St. 318. 2. Inquiries to Other Lands.—A recovery, in forcible entry and detainer, of a part of a lot of land, is not a bar to an action of trespass alleged to have been committed on another part of the same lot. McDonald v. Lightfoot, 1 Morr. (Iowa) 450. A defendant in an action of forcible entry and detainer is not prejudiced by the excess of a judgment against him for more land than he claims. Johnson v. West. 41 Ark. 535. A judgment for unlawful detainer, under the Alabama Rev. Code, $$ 33118 C. of L.-12 12 is no bar to an action for previous damages not therein included. Belshaw v. Moses, 49 Ala. 283. Against Third Party in Possession.Judgment without execution by landlord against lessee, does not prevent lessee's bringing action against a third person for possession. Kelly v. Clancy, 15 Mo. App. 519. Crops Growing on Premises.-An action of forcible entry and detainer by a landlord against his tenant, for the restitution of the whole or a part of a farm, does not necessarily involve the ownership of the corn grown by the tenant upon the farm during his occupancy. And a judgment in such action is no bar to an action by the tenant against the landlord for the conversion of such corn, or to any afteraction brought by either party. Waite v. Teeters. 36 Kan. 604. Action for Title.-A justice's judgment in a forcible detainer proceedingis no bar to another action as to the title of the premises. Dale v. Doddridge, 9 Neb. 138. 3. Abuse of Execution.-The officer is liable for acts of undue haste, oppression, and injury, amounting to abuse of process, committed in executing a judgment for complainant in forcible entry. Andrea Thatcher, 24 Wis. 471. Stay of Execution.-After judgment in the circuit court, in unlawful entry and detainer, from which no appeal was taken, an entry was made to the effect that defendant petitioned for improvements made on the premises, and that. by consent of plaintiff's attorney, a stay of excution was granted. Held, that the court had no authority to grant a stay of execution, and at the subsequent term an execution for damages (the judgment for possession having been satisfied) might issue. Sims v. Kelsay, 75 Mo. 68. 177 4. Baker v. Dickson, 62 Cal. 19. Compare Holland v. Green, 62 Cal. 67. where the proceedings are quashed or reversed on appeal or certiorari, it is a general rule to award a writ of restitution to restore the possession to the defendant; but this is not a matter of right, and depends upon the exercise of a sound discretion by the court." In executing the writ of possession, the officer may enter the premises forcibly, if necessary; and, having entered, it is his duty to remove all property, as well as the person, of the defendant, doing as little damage and using as little force as possible in order to effect his purpose.3 And a misdescription of the character of Where a party has been put out of possession of land by an abuse of the process of law, there must be restitution as a matter of course, unless some new matter has intervened in the meantime. And until restitution is made no application for an injunction will be entertained. Perry v. Tupper, 71 N. Car. 380, 385. See Perry v. Tupper, 70 N. C. 538. Restitution When an Appeal Has Been Taken. On the dismissal of an appeal by the defendant in a case of forcible detainer, the court may award restitution. Harlem v. Scott, 3 Ill. (2 Scam.) 65. Where the circuit court affirms a judgment of a justice of the peace, it is not error to remand the cause to the justice to issue a writ of restitution. Murry v. Harper, 3 Ala. 744. On appeal by a plaintiff in forcible detainer, to the district court, and a verdict, "We find the defendant guilty, and that plaintiff only had possession of the land that the house occupied," held, that a motion by the plaintiff to be put in possession was properly overruled, it not appearing that the right of the plaintiff to the possession had not expired before the final trial. McLaughlin v. First Nat. Bank, 23 Iowa 202. In Maryland, an inquisition of forcible entry and detainer was quashed as to the detainer and affirmed as to the forcible entry, and restitution was awarded. Proprietary v. Brown, 1 Har. (Ind.) 428. The Pennsylvania Act of 1865 making the certiorari a supersedeas does not apply to writs of possession issued upon proceedings in forcible entry under the act of 1772 in that regard. Guarantee Co. v. De Coursey, 10 Phila. (Pa.) 88. One Copartner Dispossessing Another should, on a finding in an action for forcible entry and detainer in favor of the latter, be restored to his joint possession. Robertson v. Robertson, 2 B. Mon. (Ky.) 235. Restitution Against Third Parties Ousting Defendant.-A defendant in forcible entry, against whom judgment is rendered, which is afterwards reversed, but who does not lose possession of the property under or through the judgment, is not entitled to be restored to possession as against third parties who have ousted him during the pendency of the action. Bowers v. Cherokee Bob, 46 Cal. 280. After Judgment in Ejectment. - A plaintiff successful in forcible entry should not be restrained from having restitution because the defendant has recovered judgment in ejectment from the premises. Dedman v. Smith, 2 A. K. Marsh. (Ky.) 260. The writ of restitution obtained in an action of forcible entry and detainer does not determine either the right of property or the right of possession, and constitutes no defence to an action of ejectment. Mitchell v. Hagood, 6 Cal. 148. 1. Commonwealth v. Bigelow, 3 Pick. (Mass.) 31; Runyon v. Hale, 10 Ark. 476; s. c., Ex parteWilliamson, 8 Ark. 424; Kennedy z. Hamer, 19 Cal. 374; Watson v. College, 2 Jones (N. C.) L. 211. 2. Towle v. Smith, 27 Wis. 268; Kennedy v. Hamer, 19 Cal 374. Although an execution on a judgment for the complainant in forcible entry and detainer be levied after a supersedeas by writ of error, the court, in an exercise of sound discretion, will not order restitution of the estate so levied upon where it appears from the record that the complainant was forcibly dispossessed of such estate by the party moving for restitution. Dutton 7. Tracy, 4 Conn. 79. Upon the reversal of a judgment for the plaintiff in a process of forcible entry and detainer, no restitution of possession is awarded. Bird v. Bird, 2 Root (Conn.), 411; Bull v. Alcott, 2 Root (Conn.), 472. Where the case itself shows that the issuing of the writ would work manifest oppression and injustice, it will be refused. Watson v. College, 2 Jones (N. Car.), 211. 3. Miller. White, So Ill. 580. An officer executing a writ of possession is bound to remove all persons in |