Thomas Saunders vs. Elizabeth Robinson, 5 Met. 343

Shaw, C. J. This suit was commenced by a

summary process, by way of complaint before a justice of the peace, for forcible entry and detainer, on the Rev. Sts. c. 104, § 2. It comes before this court on exceptions to the directions of the court of common pleas, on a trial before that court; and the only question is, whether those directions were right. The revised statutes on this subject, although they enlarged, to some extent, the provisions of the old statutes, and rendered them more definite, were never intended to substitute this

summary process of complaint before a magistrate, for a regular action to try a question of title. We think, as the statute now stands, it provides for three cases, well defined : First, where a tenant, whose term or right of possession has expired, holds possession, without right; secondly, where any forcible entry shall have been made ; or thirdly, where any entry shall have been made in a peaceable manner, and the possession shall be unlawfully held by force. In either of these cases, the process will lie ; but one of them must exist, to maintain it.

The bill of exceptions, in the present case, shows the instructions of the court in matter of law, and enough of the evidence to show the application of those instructions. The court instructed the jury, that this

summary process could not be maintained, in the absence of all relation of landlord and tenant, unless there was evidence of an actual forcible entry, or detainer, by violence, or threats of violence, or some act or threat of force, calculated to alarm the complainant or his agent, or deter him, from apprehension of forcible resistance ; and that there was no such evidence of force here, in taking or keeping possession, as would sustain the complaint.

The former part of this direction we think was a precise and accurate statement of thd law of the case, adapted to enable the jury to pass upon the evidence, and all that the evidence in the case called for. A mere unlawful entry into lands, though it would justify the common averment of vi et armis, or force and arms, is not the forcible entry contemplated by the statute.

It must be something more, either an original entry or subsequent detainer, with strong hand ; and this may be by the use of actual force and violence, or by menace of force, accompanied by arms tnd a manifest intent to carry such threat into effect, or by a sh jw of force, calculated to create terror and alarm, by an exhibit on of arms, a display of numbers, or other means manifesting an open and visible determination forcibly to make the entry, or "orcibly to resist the entry of another. These principles v ire well and concisely stated in the charge of the court.

See 1 Hawk. c. 64, §§ 25—30. 1 Russell on Crimes, (1st ed.) 414—418. The latter part of the charge was a remark upon the force and effect of the evidence, which was a question of fact for the jury, and by which they were not bound, because it embraced no direction in matter of law. Perhaps it would have been more regular and conformable to the well known distinction between the relative powers and duties of the court and the jury, to have left it to the jury, on the evidence, whether any such forcible entry or forcible detainer was proved.

At the same time,"it is proper to add, that as far as the evidence appears, (and the bill of exceptions purports to state the whole of it,) we are fully satisfied that there was no evidence, upon which the jury could have found a different verdict, from that" which they did find. It was contended in the argument, that there was evidence, upon which the jury might have found that the relation of landlord and tenant existed. We can perceive no such evidence.

It seems that the defendant entered when the premises were vacant, without and against the consent of the landlord or his agent, and that the latter, after he knew it, at every interview with her, expressed bis dissent, and required her xo leave the premises. But, if the complaint proceeded upon that branch of the statute — which does not appear—and if the plaintiff wished to submit it to the jury on that ground, he should have raised the point at the trial, and asket 2 direction of the court upon it.

This point not having been taken at the trial, we think it cannot now be taken at the argument, upon evidence reported for another and distinct purpose. Exceptions overruled.