McGONEGAL vs. WALKER, 23 Ala. 361

CHILTON, C. J. In order to sustain the proceeding of forcible entry and detainer, the plaintiff must show that the defendant has entered upon his premises forcibly, and that ho actually detains the possession from him. The detainer need not be by the defendant in person; ho may detain by another, to whom he delivers the possession, after ho has obtained it by force, to be kept for him; nor does it make any difference that the person to whom ho delivers it had been his tenant before the premises went into the possession of the plaintiff.

There was, therefore, no error in refusing to give the instruction prayed for by the defendant in the court below. As to the first charge which the court gave, it is only necessary to remark that, if it is erroneous, that error consists in denying a right to the plaintiff to recover, if the parties purchased with a well defined and fixed boundary line between them, and now hold as they did then.

It may well admit of question, whether, if the plaintiff had peaceable possession of land not included in the fixed boundary on his side, the defendant could forcibly enter and dispossess him, without being subject to this remedy. But this point is not before us. The error, if there be one, was in favor of the plaintiff in error, and consequently forms no ground of reversal, as no injury could properly have resulted to him from it. The counsel supposes this charge to be abstract, as it assumes there was no defined line between the lots claimed by the parties ; but we think the objection not well founded.

It was for the jury to determine whether, if there had been a well defined boundary line between them, they would have contributed their money to have a survey made to ascertain the true line. The circuit judge, however, mistook the law in charging the jury that, if they believed the plaintiff was entitled to the possession of the premises, then the removal of the plaintiff’s fence by defendant, in the manner shown by the proof, was sufficient force to maintain the action. The bare removal of the fence, if the defendant had entered peaceably, would not convert his entry or detainer into a forcible one.

The fence is a fixture, and in law considered as a part of the realty, and was not in the contemplation of the legislature when it was declared that “ the carrying away of the goods of the party in possession” should constitute sufficient force to confer this remedy.— We do not undertake to decide whether tho evidence was or was not sufficient to show that the defendant entered forcibly.

The proof upon this disputed fact was conflicting, and the weight of the testimony was a matter solely for tho jury ; but this charge withdraws from them its consideration, and the court determines, as a matter of law, that the removal of the fence, as the same was shown by tho proof, was sufficient force to entitle the plaintiff to his remody, if he was entitled to the possession. This point is not unlike that decided in Botts v. Armstrong, 8 Por.

Rep. 57, in which the court held, that “where the consideration of the evidence showing the circumstances connected with the entry of the defendant, is taken from the jury by the charge of the court, the cause must be remanded.” There was proof conducing to show that no such force or violence was used as is required to sustain this action, and however strongly it may have been opposed by other proof, still it <was for the jury to determine its weight, and the court committed an error in virtually withdrawing it from them. Let the judgment of the Circuit Court be reversed, and the cause remanded.

Gibbons, J. did not sit in this case.