#### GEORGE H. *COX, plaintiff in error, vs.*JAMES GROSHONG, et al. *defendants in error.*

| *Error to Grant county.*

Tiif, statute to prevent forcible entries and detainers provides for two classes of cases; an unlawful and forcible entry and a forcible detainer, and a lawful and peaceable entry and unlawful detainer; and in proceeding under the statute, ttio complaint must state a case of one or tho other of these classes. A complaint for a forcible detainer, without alledging a forcible entry, is bad.

Tho complaint must describe the premises with reasonable certainty; and where the complaint describes tho land as a range of lead ore and a strip or piece of land on each side running easterly and westerly across the land owned by certain persons in a particular section, it is bad for the uncertainty of description.

Where tho complaint is defective, the defendant does not waive the objection by going to trial, but he may make it at any stage of the proceedings.

*151In proceedings in forcible entry and detainer, the provisions of the sta > tute must bo strictly pursued.

Justices’ courts are not courts of record, and do not proceed .according to the course of the common laiv, and so far as their powers arc concerned,they are confined strictly to the authority given them by statute. They can take nothing by implication, but must show that the power which they exercise is expressly given to them in every instance.

Where a canso has been removed from one justice to another, and the parties proceed to trial without objecting to the justice to whom the case was sent, it is too late after the trial to object because he was not the nearest justice to the one before whom the cause originated.

In April, 1842, Cox commenced a proceeding in forcible detainer against James Groshong and others, before Samuel Tompkins, a justice of the peace in Grant county. The complaint stated that' Cox was “ the owner of, and justly entitled to the possession *of,*the undivided one-fourth part of a certain rango of lead ore and a strip or piece of land on each side, running easterly and westerly across the land hereinafter described, and the right of searching and digging for lead ore thereon, situate on the lands now owned by James Groshong, Jonathan Craig, and said Cox, in section seventeen, township No. four nbrth, of range No. three west, in said county of Grant.” “That one James Groshong, Jefferson Gro-shong, and one Stone, did, on or about the first day of February, 1842, wrongfully, and wiihoutlawful authority, enter into and upon the said undivided one-fourth part of the said range of lead ore, and the said strip of land and the right of searching for lead ore thereon, and took possesion of the same, against the right of the complainant, and have, from thence hitherto, wrongfully, unlawfully, with force and arms, with a strong hand and multitude of people, detained the possession thereof from the said complainant.”

Process was issued upon the complaint, and returned to the 25th April, on which day, on the application of James Groshong, one of the defendants, the case was adjourned to the 30th April. It appears that upon this application the justice first adjourned tiie cause to the 6th May, but immediately afterwards his attention was directed to the statute upon the subject, from which he considered that he had not the power to adjourn the cause for so long a time, when he recalled the parties and witnesses, and notified them that the adjournment was to the 30th April, and that not more than fifteen minutes had elapsed from the time of first fixing the adjournment.

On the 30th April, Jefferson Groshong, one of the defendants, *152applied for and obtained a change of venue from before Justice Tomkins, who immediately transmitted tbo cause to Jeremiah Spencer, as the nearest justice qualified to act. Spencer was at that time, accidentally in Lancaster, where Tompkins was holding his court, but his residence was not so near as that of some other justices in the county. Spencer immediately proceeded with the trial of the cause, and empannelled the samo jury that had beers summoned before Tompkins. Before the trial commenced, the defendants filed before Justice Spencer an affidavit for a continuance, setting out, as the grounds, the absence of a material witness, who resided in Illinois: that due diligence had been used to procure him: that James Groahong was then gone for him; and that the defendants believed if an adjournment was granted for seven days the witness could be procured. The motion was overruled by the Justice, and the trial proceeded. The jury returned a verdict against the defendants, upon which the Justice rendered a judgment, and awarded a writ of restitution.

The defendants took the case into the District Court by writ of certiorari, and assigned the following errors in the proceedings before the Justices:

1. For want of a legal, full, and sufficient complaint in the law; a legal, full,and sufficient summons thereon.

2. For that the said Justice Tompkins erred, when after he had, on the application of the defendants, adjourned the said action over to the 6th of May, and dismissed the jury, witnesses, and parties, in setting aside that continuance, and compelling the de„ fendants to answer on the 30lh of April.

3. For that the said Justice Tompkins erred, when he changed the venue from before himself to Spencer, not the nearest justice to the place of holding the court of said Tompkins, or his place of residence, and when there were other justices residing sis miles nearer the said Tompkins.

4. For that the said Justice Spencer erred, when he took cognizance of the case at the place he did, without his docket, and tried it by the same persons whom the said Tompkins had summoned to sit as jurors in the case, without issuing a new process for a jury.

5. For that the said Justice showed himself to be a partial justice, from the manner in which he procured the case to be brought before himself on the change of venue from before said Tompkins.

*1536. Fqr that the said Justice Spencer erred, in not giving the defendants a continuance on their application on affidavit filed, the said Justice admitting that the causes entitled them to a coiiiin-uance.

7. For that the said Justice Spencer erred, in not having his docket present, and reducing his proceedings and decisions to writing.

8. For that the jury erred in giving a verdict in favor of the plaintiff, the testimony not having supported his complaint; and the justice erred in rendering judgment on the verdict.

9. For that the whole proceedings were illegal and void.

It appears from the return of Justice Spencer, that this was the first case which he ever tried; that he had no docket at the time; and did not then reduce the proceedings and decisions to writing; but when he went home he took down the material parts, and made up his docket as soon as possible.

At the March term, 1843, the District Court ievdrsed thd judgment of the justice; and the cause is brought into this court by the complainant, Cox, on writ of error to reverse the judgment *oí*the District Court.

Eastman, for plaintiff in error:

The objections that were taken to the complaint and summons are not tenable. They are formally drawn, and the complaint sets out the plaintiff’s case with legal certainty.

The change of time in the continuance by Justice Tompkins was right and proper. The statute gives him no power to continue a cause for so long a period as was first fixed upon, and on discovering his error, within fifteen minutes, he changed it to a time within his authority, and notified the parties and witnesses of tho alteration, and no injmy resulted to any one. It was the duty of the Justice to correct the error before the parties had sepa-» rated.

When the venue was changed, Spencer was the nearest justice in fact to Tompkins. He was in Lancaster accidentally on business, and was qualified to try the cause¡ Ajustice is not Confined to any particular district, but his authority is co-oxtensive'with the county, and he can hold his court at any place within the county. In this respect, the statute was fully complied with.

Tompkins was bound by law to transmit all the papers in the case to Spencer, and, of course, the venirie facias and return; *154Spencer was bound to proceed with the cause as though it had been commenced before him; lie therefore had to take up tho case precisely where Tompkins left off, with the jury that had been summoned, lie had no right to discharge the jury.

The minutes taken down by Justice Spencer to enable him to make.up his docket, were sufficient. The record was properly made up as soon as it could be done, and it is not vitiated because ho had not previously procured a docket and wrote the proceedings in it at length as they occurred.

The refusal of Spencer to continue the cause cannot be regarded as error. The question was one for his discretion, and if he thought the grounds not sufficient, the court cannot set aside the proceedings for that causo; especially when it is borne in mind that this was the second application to continue the cause by tho same parties, and the record does not show any steps taken to procure the testimony of the absent witness.

The court will find, upon examining the record, that evidence fully supports the verdict and judgment. Upon this point, tho courts require a stronger case to reverse a judgment than they would to grant a new trial; and in this case, according to authority, the court could not grant a now trial, on the ground that the verdict was against evidence. 2 Salk. 650; *id.*654; *id.*646, G47. *Cools- vs.*Berry, 1 Wilson, 93. Graham on New Trials, 10, 15, 16, 35, 168, 194, 210, 281. 3 Blackford, 305. Stephen on Plead. 147. 1 Scammon 538, 539. 2 Scammon, 129, 130.

Dunk, for defendants in error:

The complaint in this case is bad, because it does not sufficiently describe the premises. The description should be so certain that the officer in making restitution can know what to restore. It is also bad for not allcdging force in the entry. Tho statute does not authorize proceedings for a forcible detainer whore tho entry has been peaceable.

After Justice Tompkins had adjourned the cause to the 6th of May, ho had no right to fix an earlier day for the trial, without the consent of the defendants. When the continuance was once made, he had no more power over the case, until *the lime of*trial arrived. The statute does not prohibit a justice from continuing a case, for cause shown, for a longer period than six days; it only limits him to that time when he continues it of his own volition.

The meaning and intention of the law in changing the venue of *155causes before justices of *the*peace is, (bat the case shall be sent to the nearest resident justice, (acts of 1840,23,) and not that a remote justice who may be accidentally present shall lake up the case and dispose of it.

It was error in Justice Spencer to empanncl the same jury that had been summoned before Justice Tompkins. Although the law requires the papers to be transferred, so as to place the cause properly before the new justice, it does not authorize the transfer of the jury. He should have appointed a time and place for the trial, and issued anew venirie facias accordingly.

The defendants were entitled to the continuance asked for before Justice Spencer. They did not expect a trial on that day, and were not bound to be prepared for it. They appeared for the purpose of changing the venue, which they knew they had a right to do under the law, and they had a right to expect that a time and place would be fixed for the trial, of which the parties would be notified. But the affidavit shows sufficient grounds. It was not necessary to have a subpena issued for a witness who resided out of the Territory, for it could not reach him. One of the defendants was gone for the witness, and they believed that he could be produced; and this was all the diligence required by the law. 1 .Leigh, 1. ■ 4 Hen. & Mun. 157.

It will be found that the verdict was clearly contrary to the evidence. The complainant failed to prove his claim as he set it out; and there was not a particle of evidence showing the use of any force by the defendants. Force, actual and not constructive, must be proven to sustain the complaint, 3 Bacon’s Ab. 716.

Opinion of the Court, by

Judge Mili.ee:

This case was commenced under the act to prevent forcible entries and detainers by George II. Cox, against James Grosbong, Jefferson Groshong, and - Stone, before a justice of the peace of Grant county. A verdict and judgment were rendered against the said defendants before the Justice, which they removed to the District Court of said county, by certiorari, where the said judgment was reversed; upon which decision of the said District Court tho said Cox sued out a writ of error.

The examination of the record will require us to consider such of the exceptions filed in the District Court, to the proceedings before the Justice as may be material.

The first exception filed was to the complaint.

*156The complaint represents, that “ James Groshong, Jefferson Groshong, and ono Stone, whose Christian name is unknown to the complainant, did, on or about the first day of February, 1842, wrongfully and without lawful authority, enter into and upon the said range of lead oro and the said strip of land, and the right of searching and digging for lead ore thereon, and take possession of the same, against the right of the said complainant, and have, from thence hitherto, wrongfully, unlawfully, forcibly, with force and arms, with strong hand and multitude of people, detained the possession thereof from the said complainant,'and still do, wrongfully, unlawfully, forcibly, and with strong hand and force and arms, and multitude of people, keep out and detain from said complainant, the possession thereof, contrary to the statute and the laws of the said Territory, after demand of possession thereof by complainant;” and prayed that summons might issue fora forcible detainer.

By the act upon which this proceeding was founded, any justice shall have authority to inquire by a jury, as well against tboso who make unlawful and forcible entry into lands, tenements, and other possessions, and with a strong hand detain the same; as against those who, having lawful and peaceable entry into lands, tenements, and other possessions, unlawfully detain the samo. By this statute, there are two classes of cases made cognizable be. fore the justice: first, an unlawful and forcible entry and detain-er; second, a lawful and peaceable entry and an unlawful detain-er. The complaint does not come within cither class. It charges that, the defendants unlawfully, and without, authority, entered the premises, while, if it was desired to proceed for the entry, it should have charged that they unlawfully and forcibly entered. But was claimed by complainant a summons for an unlawful de-tainer merely, which comes under the second class when the entry is lawful and peaceful. From this it will appear, that this complaint did not conform to the statute, and for this alone, *the*District Court did right in reversing the proceedings before the Justice.

This is a proceeding authorized and regulated by statute, and committed to a tribunal whose jurisdiction and authority are created by the statute alone; for these reasons, the provisions and directions of the statute must be strictly pursued. Justices’ courts are not courts of record, and do not proceed according to the course of the common law, and so far as the powers aro concern*157*ed, they*are confined strictly to the authority given them by the Statute. They can fake nothing by implication, but must show the power which they exercise expressly given them in every instance. *Thomas vs. Robinson,*3 Wend. 287. *Mills vs. Martin,*19 John. 33. *M'Carty vs. Shannon,*3 John. 429. *Borden vs. Fitch,*15 John. 140. *Andrews vs. Montgomery,*19 John. 162.

The complaint sets forth: “ that the said George H. Cox was, on the first day of January last, has been, and still is, the owner of and justly entitled to the possession of a certain range of lead ore, and a strip of land or piece on each side thereof, twenty-five yards wide on each side, running easterly and westerly across the land hereafter described, and the right of searching and digging for lead ore thereon, in section 17, township No. 4 north, of range No. 3 west, in said Grant county.” This would also appear to be too vague and uncertain. It does not describe the land by any marks, description, or boundaries, nor does it even refer to its location in the section. It is true, that a court would have a superintending power, which would always be promptly exercised, in case a plaintiff would take on a writ of restitution what be had not recovered; but it is doubtful whether a justice could exercise it. We are aware that it is impossible always to describe a tract of land with so much accuracy as to enable the sheriff to deliver it, without some person to show him, on the ground, the boundaries alluded to in the writ; but, nevertheless, the premises must be described with reasonable certainly. See, on this subject *Burdick vs. Norris, 2*Watts, 28. *Martin vs. Martin,*17 Sergt. & Rawle, 431. *The Borough of Harrisburgh vs. Crongle,*3 W. & S. 460. *Smith vs. Jenks,*10 Sergt. & Rawle, *153. Fisher*vs. *Lorick,*7 Sergt. & Rawle, 99.

The remaining exceptions will be disposed of together. The justice is allowed to adjourn, at his discretion, any trial under the act, not exceeding six days. This is a very summary proceeding, which requires the parties to make every effort to procure their testimony and be prepared for the trial. By the act of 18-10, section 8, authorizing the removal of causes from one justice to another, after the oath is made by the defendant, the justice shall immediately transmit all the papers in the case, to the nearest justice qualified by law to try a cause between the parties m the suit, who shall proceed to hear and determine said cause in such manner as if it originated before him. In this case, the parties made no ob*158jection to Justice Spencer. The papers were immediately tans-, mitted to him by Justice Tompkins, and the parties, without objecting to his jurisdiction, wont to trial on the same day of the removal of the causo. After this, it was too late to make the objection that he was not the nearest justice to Justice Tompkins qualified to act, if it could be made at any time.

Eastman, for plaintiff in error.

Dunn, for defendant in.error.

The trial before Justice Spencer did not waive the errors in the complaint. As we have seen that the jurisdiction of a justice must be made affirmatively to appear, there are no presumptions in its favor. It was competent- to the defendant, to raise the objections at any stage of the proceedings.

As the complaint is defective, and for this reason, the judgment of the Justice was correctly reversed by the District Court, it is unnecessary to examino the questions raised upon the evidence,

Judgment affirmed with costs.