#### CHARLES *BRACKEN, plaintiff in error, vs.*SYLVESTER B. PRESTON, et al. *def'ts in error,*

*) > Error to Iowa county.*\

Justices of the Peace are not bound to examino jurors under oath as to their qualifications, as the authority to do so is not given them by statute.

In proceedings in forcible entry and detainer, the complainant must set forth his title so far as to show himself within the provisions of the statute, and that title may be controverted by the defendant, but the defendant cannot sot up title in himself in defence; the title to the premises, as, between the complainant and defendant, cannot be inquired into: The complainant must sot forth a seizin or possession in himself within the provisions of the act, and whether his estate is frco-hold or a term of years, and upon the traverse, he must «rovo the allegations as to his estate, but the defendant cannot justify the force by showing title in himself.

In caso of forcible entry and detainer removed into the District Court by certiorari, the District Court may decide upon errors in fact, but whether the Supreme Court can do so on writ of error is not settled.

Bracken filed a complaint before William Henry, a justice of the peace in Iowa county, setting forth that he was the owner in. fee of the undivided one-third part of the east half of the northeast quarter of section 5, township 4, of range 3, east, and being in possession thereof, Sylvester B. Preston, William Kendall, William Nichols, and William T. Philips, forcibly entered upon, and forcibly detained the samo.

*221Upon the trial of the complaint, Bracken wished to examine some of the jurors under oath, previous to their being sworn in chief, as to whether thoy had formed or expressed an opinion in relation to the matter to bo tried, but the justice refused to allow the qualifications of the jurors to bo inquired into, and they were sworn in chief.

After the complainant’s evidence was heard in relation to his title, possession, and the forcible entry and detainer complained of, the defendants proved in justification, that one Andrew Rum-frey and the complainant, previous to the occupying of the premises by the defendants, had some conversation in which Rumfrey said he wished to dig on the complainant’s ground, and complainant said he might do so, but that he wanted the mineral, and Rum-frey replied, that if he would give as much for it as any body else he might have it; that after this Rumfroy mined upon the land in dispute, and after working some time, sold his interest in it to the defendants: Written transfers from Rumfrey to each of the defendants, embracing together all his interest, wore produced and read as evidence. To all of this testimony, the complainant objected, the justice overruling his objections.

The jury returned averdict in favor ofthe defendants,upon which the justice rendered judgment. Bracken removed the proceedings into the District Court, by certiorari, and assigned the following errors to reverse the judgment of the justice.

1. The justice error in refusing the complainant the privilege of asking the jurors under oath whether they had formed or expressed an opinion.

2. After a peaceable entry had beer, proved by the complainant, the justice erred in suffering any testimony whatever to show that the defendants had any right of possession, for if they had any such right, they could only obtain it by due course of law, and could not justify the force.

3. The justice erred in permitting the written transfers from Rumfrey to Philips and the other defendants, to be read as evidence for the defendants, as there was no proof that Rumfrey had any interest that he could transfer.

4. If the defendants could justify the force under the transfers from Rumfrey, they could only do so, by showing that they and Rumfrey had complied with the terms of the contract with Bracken.

*2225. The verdict was contrary to law and evidence.

Upon the consideration of these errors, the District Court affirm,-od the judgment of the justice; to reverse which decision, Bracken has prosecuted this writ of error.

Judge ÍKVIN, being a part owner of the land, though not interested in the subject matter of this suit, declined sitting in the. case.

Moses M. Steohg, for pPff in error:

On the trial before the justice, the complainant asked to have some of the jurors examined under oath, as to whether they had formed or expressed an opinion upon the subject about to be submitted, which was refused by the justice. This is the first error in the proceedings. The statute makes the inquiry a proper one in the District Courts, and it is a common law right in all cases of iriai by jury. The trial by jury before a justice is of no benefit, if a party is bound to submit to a jury that are prejudiced against him and who have pre-judged the case.

The evidence in the case shows that the complainant was in peaceable possession of the premises, and that the defendants committed the forcible entry complained of. The justice permitted the defendants to justify by introducing evidence to show a right of possession in themselves. This they did by proving a vague conversation between one Rurnfrey and the complainant about Rumfroy’s digging on the ground, and then by written transfers from Rurnfrey to the defendants. We contend that all this evidence was improper, and should not have been admitted: That on the trial, nothing but the force complained of, could legally bo inquired into, and that in proceedings of this kind, the defendants cannot justify by showing any rightor title in themselves. But if such testimony had been legally admissible in this case, the vagne conversation between Rurnfrey and Bracken did not'amount to a contract that could be legally carried into effect. There was nothing in it that was definite, either as to terms, duration, location, or any thing else. Admitting, however, that it was a contract between Bracken and Rurnfrey, the utmost construction that could be put upon it, would only make a Rurnfrey a tenant at will, and that would not vest in him any right or interest in the soil that he could transfer to another. 13 John. Rep. 106; 2 Caine’s Rep. 169; 6 Amor. Com. Law, 389; 2 Verger’s Tenn. Rep, 249; 4 Ver. Rep. 291.

*223Dunk, for def’ts in error:

The statute of forcible entry and detainer is perfect in itself and does not refer to any other act of the legislatura to carry out any of its provisions: It must, therefore, bo construed by itself alone, without considering it in connection with any other. This statute does not provide for the challenge of jurors for the causo assigned, and the justice could not have allowed it; if he had done so, he had no power to fill the jury.

But if the justice erred in this decision, still, if tho verdict of the jury was warranted by the evidence, the Court will not set it aside. If the Court examines tho evidence in the caso, it will be found that no other correct verdict could have been given upon it than tho one found by the jury. There was no pro'of of right in the complainant or of force by tho defendants.

But we contend, that on certiorari, the Court cannot inquire into the facts of the caso. Errors of law alone can be examined by the Court; 10 Wendall, 422.

Burnett, in reply:

If we consider the very object of a trial by jury, the complainant certainly had a right to test the qualifications of the jurors called to try his complaint. Every party has a right *to*a fair and impartial jury who have not pro-judged his case. The statute requires that the jurors shall bo qualified to try a cause in the District Court. This cannot he applied to one qualification or another, but they must be so qualified in every respect. If then it would be error in the District Court to refuse to examine into their qualifications and force upon a party a prejudiced juror, it must be error in tho justice. But it is said, that if the evidence sustains the verdict, the court cannot set it aside, on account of any legal defects in the juvy. I do not understand this to be the law. It is immaterial what the court may think of the testimony, if there was error in the cmpannelling of the jury, and the party was deprived of a legal right in the selecting and trying the jurors, the court is bound to sot aside the verdict.

Again it is said that the court cannot look into ihe facts on cer-tiorari, and a case in 10 Wendell has been referred to to establish the principle. By an examination of the eleventh and sixteenth sections of tho statute, it will be found that the principle cannot be applied here. The eleventh section provides that the party aggrieved by the decision or judgment of the justice, or verdict of *224the jury, may remove the proceedings into the District Court by certiorari, and the sixteenth section directs that in such case, the court shall give judgment according to the very right of the case. Here then the party may have the writ and remove the proceedings, although the verdict of the jury may be the only thing in the case that aggrieves him, and to say .that the court, after the cause is removed, cannot look into the facts, is to make this portion of the statute a dead letter.

Opinion of the court, by

Judge Miller:

Charles Bracken commenced proceedings before a justice of the peace of Iowa county against the defendants, under the act to prevent forcible entries and detainers. The complainat charged that the defendants made an unlawful and forcible entry into his lands and tenements and with strong hand detained the same. The jury found for the defendants, and the case was removed by the plaintiff by certiorari, to the District Court of Iowa county, where the judgment before the justice was affirmed. The plaintiff thereupon sued out this writ of error.

The first errorassigned is; that the justice refused to have the jurors sworn to answer questions respecting their capacity to serve as jurors, and whether they had formed or expressed an opinion of the merits of the cause.

Section 26 of the act concerning grand and petit jurors, gives authority to the Distiict Courts to swear the jurors, but not to justices of the peace. There is no such authority given by law to justices of the peace. Without authority by law the court or justice has no right to require jurors to be sworn to answer questions, whether they have declared opinions on the case. It would be the duty of the justice to admonish them, that if they did not feel indiffeient, or had pre-judged tho cause or declared their opinions, they should disclose it. *The Commonwealth vs. Dennie,*4 Yeats, 267. Without an act on the subject a juror may be sworn, but there is no obligation to do so.; *McCorcle vs. Binns,*5 Binney, 340. In this case there is not even an allegation that any one of the jurors had formed or expressed an opinion, and the justice not being obliged by law to swear a juror on the subject, there is no error in the refusal of the justice to do so. But that there should be a law requiring it in cases before justices of the peace, there is *no*doubt.

The second error assigned, is as follows: The lease to An*225drew Rumfrey was only a parol lease which only created a ten-antcy at will, and might terminate at the option of either partyj and Rumfrey had not such an interest as could be transferred.

This relates to testimony given on the part of the defendants, and should not have been allowed before the jury; and will not be considered here. If the cause had turned on this evidence, the judgment before the justice should be reversed. The defendants are proceeded against for forcible entry and detainer.— They have no right to justify the force by showing title in themselves. It is in the nature of a criminal proceeding against them, and they cannot justify the forcible entry and detainer on the strength of their title. In a proscution of this nature, the title to the premises, as between the defendants and relator or complainant, cannot be inquired into, though the latter is bound to set forth his title so far as to show himself within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own as a substantive matter of defence, because the question of title cannot be tried in this action; *The People vs. Godfrey,*1 Hill, 240. In a proceeding of this kind, the complainant must set forth a seisin or possession within the perview of the act, or whether his estate be a freehold or term of years; and on the traverse, the allegations as to his estate must be proved by him: But the defendant cannot justify the force by showing a title in himself: He may controvert the facts by which the complainant attempts to show title in *himself; The People vs. Nelson,*13 John. 340. The same doctrine will bo found in the cases of *The People vs. Ricket,*8 Cowen, 226; *The People vs. Leonard,*11 John. 504. And if the title of the defendant, or his right of possession is paramount, he must resort to an appropriate remedy to maintain his rights.

The third error assigned is as follows: “ It having been proven that the plaintiff was in the peaceable possession of the land, he could not have been ousted only by due course of law.”

By th£ sixteenth section of the act to prevent forcible entries and detainers, the District Court to which any certiorari is returned, shall proceed to hear and determine the same, as the very right of the case shall appear, without regarding technicalities or imperfections in the return. Evidently, from this section and other provisions in said statute respecting the removal of eauses by certiorari to the District Court, that court has the power to de» *226cide upon errors of fact as well as of law. This court is a court for the correction of errors in questions of law, and generally, should not inquire into the correctness of the decisions of tho District Courts in questions of fact. As the court is not full, and this case does not require it, we will not in this case, establish a rule on this subject, although referred in the argument to a case in point; *Columbia Turnpike Company vs. Hayward,*10 Wendell, 422.

Moses M. Strong and Burnett, for plaintiff in error.

Dunn, for defendants in error.

In this case the complainant did not make out by proof) a forcible entry and detainer against the defendants.

Judgment affirmed with costs.