
    Sage vs. Harpending.
    The provision of section 5 of subdivision 2, of the act of April 3, 1849, to amend the Revised Statutes, in relation to summary proceedings to recover the pos- ■ session of land, which authorizes such proceedings, when instituted before a justice of the peace, to be removed by appeal to the county court, in the same manner and with the like effect, as appeals from the judgments of justices of the peace in civil actions, ■ but directs that in case of appeal by the tenant, in. order to stay the issuing of a warrant or execution, security shall also be given for the payment of all rent accruing or to accrue upon the premises subsequent to the application to the justice, does not apply—so far as relates to a stay-—to proceedings instituted against a tenant solely on the ground that he is holding over after the expiration of his term.
    That section of the statute does not create a right to stay the issuing of the warrant in a case where it did not previously- exist, but it merely provides that in order to exercise the right to stay, in cases where it previously existed, security shall be given as therein prescribed.
    An appeal to the county court, taken by virtue of the act of 1849, of itself, merely transfers the proceedings to the county court for the purpose of review, but does not affect the power of the justice to issue a warrant to enforce his judgment.
    And a warrant so issued, being regular and valid, and the landlord having been put into possession of the premises by virtue of it, he'is justified in using so much force as is necessary to defend himself and maintain his possession.
    And in an action against him, by the tenant, for an alleged assault and battery committed in repelling the attempt of the tenant to re-enter, the only question for the jury is whether the defendant used an excess of force.
    Even though it be assumed that a justice of the peace has not power to issue a warrant to dispossess a tenant after an appeal by the latter to the county court, yet his judgment, until reversed or set aside, is of force as an adjudica-tion, and it determines that the lease has expired and the landlord is entitled to the possession of the premises. The fact that an appeal has been taken does not affect the conclusive nature of the judgment as a bar, while it remains unreversed. It is therefore erroneous, to charge that the judgment ceased to be res judicata when the appeal was perfected.
    Where the landlord and owner in fee, claiming that the term has expired, enters without process and without force, during the temporary absence of the tenant, the latter has no right to take the law into his own hands and attempt to dislodge the former by force. The landlord being in the actual possession has a right to maintain it, and to use force, if necessary, for that purpose.
    ACTION for assault and battery. Defense. 1. A general denial. 2. That at the - time of the alleged'assault, the defendant was the owner and in possession of certain real estate, consisting of a store and building in the town of Starkey, Yates county, and the alleged assault was committed in defense of his possession and to prevent great bodily harm being done him by the plaintiff, who, with the assistance of- divers persons armed with axes, &c. wrongfully entered to expel the defendant. 3. Son assault demesne.
    
    On the trial at the Yates circuit in March, 1866, the following facts were proved. The defendant, Harpending, was the owner of a.block of buildings in the village of Dundee, known as Harpending’s block. On the 7th of April, 1865, and for about two years next preceding that date, Sage, the plaintiff, was in possession of certain rooms in said block, as tenant of the defendant, under a lease. On the 7th of April, 1865, Harpending instituted summary proceedings before a justice of the peace, under the statute, to remove Sage, on the ground that he was holding over after the expiration of his term, without the permission of -his landlord, alleging that the term of the lease expired on the 1st of April, . 1865. Sage appeared in the proceedings, and made an affidavit, admitting his tenancy, and his occupation of the premises, but denying that his term had expired, and alleging that by the terms of the agreement between him and Harpending his term would not expire till the 1st of April, 1866. The issue thus joined was tried before the justice on the 13th of April, 1865, who on the same day gave judgment in favor of Harpending, for the immediate possession of the premises, and his costs. On the same day, and before a warrant was issued, Sage perfected an appeal from said judgment to the Yates county court, and on such appeal put in an undertaking executed by a sufficient surety, conditioned as required by law to make such appeal effectual, and conditioned that the tenant would pay all rent accruing or to accrue upon the premises described in the landlord’s affidavit in said proceedings subsequent to the application made by said landlord to the justice to remove said tenant. After the appeal was perfected and the undertaking was put in, and on the 15th of April, 1865, the justice, at the request of Harpending, issued his warrant of possession, against Sage. After the appeal, and before the issuing of the warrant, it had become a question of discussion between the counsel of the respective parties, in the presence of Harpending, whether the justice had any right to issue his warrant after the appeal was perfected and the undertaking was put in. On Saturday, the 15th of April, about five o’clock in the afternoon, while Sage was absent, the sheriff, with the warrant and without force or violence, put Harpending into possession of the premises, with the understanding that Sage’s personal property might remain there, undisturbed, until Monday morning at nine o’clock. As soon as Harpending got possession he fastened the building securely, so that no one could enter it without breaking in, and on Sunday he commenced taking down partitions erected by Sage. On that day Sage went to the building and called upon Harpending to open the door, but he refused. Sage then broke into the building, through a window sash. Other persons acted in concert with him, one of whom used an axe to effect an entrance. The testimony tended to show that vsdule Sage was on the outside Harpending showed him a pistol and told him he must not come in, and that as soon as Sage broke through the window, he went towards Harpending as fast as he could. When he was about five feet from Harpending, the latter fired upon him, with the pistol and shot him in his left breast. Sage was protected by his clothing and the contents of his vest pocket, so that the skin was not broken, but he received a bruise upon the breast. As soon as the pistol was fired, Sage sprang upon Harpending and took hold of him; Harpending struck Sage on the head with the pistol, and drew blood, but soon after, the pistol was taken from him, and, as the testimony tended to show, he was overpowered and compelled to surrender possession of the premises to Sage. The action was brought for the personal injury sustained by Sage, and he recovered a verdict for $300.
    On the trial, the judge ruled that unless the defendant could show that the warrant was legally issued, upon a proper judgment, and proceedings had for the purpose of dispossessing the plaintiff, the defendant was not justified in holding possession of the premises. He also ruled that the appeal removed the proceedings from the justice to the county court, and the justice had no right to issue the warrant after the notice of appeal was served on him, and that the warrant was void.
    He also charged the jury that the appeal and bond given, and the proceedings had by the plaintiff, operated as a stay of proceedings, so that the justice had no right to issue the warrant; that the warrant was void; and that the defendant was not rightfully in possession.
    He also charged that the defendant was a trespasser in talcing possession of the building, and the plaintiff had a legal right to break into the building, and the defendant was guilty of a wrong in resisting the plaintiff in getting in.
    The counsel for the defendant excepted to these several rulings, and requested the judge to charge the jury that if the defendant had possession in fact, he was justified in using violence if necessary to defend his possession. The court declined so to charge, hut charged that the defendant was a mere trespasser, who had hut recently entered, and the plaintiff had the right, if compelled to do so, to use force to eject the defendant.
    The defendant’s counsel also requested the court to charge that the judgment before the justice between the parties, was res judicata, and settled the rights of the parties, and that the plaintiff was holding over his term; hut the court declined, and charged that the judgment ceased to be res judicata, after the appeal was perfected, with the security.
    The defendant’s counsel also requested the court to charge that the plaintiff could not recover in this action, except on the ground that excessive violence was used by the defendant, in defending his possession; but the court declined, and charged that it was not so in this case.
    
      The defendant’s counsel also requested the court to' charge that from the undisputed facts of the case, the plaintiff was not entitled to recover against the defendant, for the reason that all the force he used, was insufficient to maintain his possession,' but he was overpowered and compelled to surrender the same ; but the court declined so to charge, or to charge on that point otherwise than he had already done.
    The counsel for the defendant excepted to. the several refusals to charge, and the several instructions above stated, and the court ordered a stay of proceedings on the verdict, and that the exceptions be heard at the general term in the . first instance.
    
      Charles S. Baker, for the defendant.
    
      D. J. Sunderlin, for the plaintiff.
   By the Court, James C. Smith, J.

It was held at the circuit, that the warrant issued by the justice was void, and consequently, that it furnished no justification to the defendant. In order to affirm this ruling it is necessary to maintain either that the security given on bringing the appeal stayed the issuing of a warrant, or that by the operation of the appeal itself the proceeding was transferred to the county court, so that the justice could no longer act in it. These propositions will be considered in the order in which they are stated.

The question whether the issuing of a warrant was stayed by the security given, depends upon the construction of certain statutory provisions respecting summary proceedings to recover the possession of land, to which it becomes necessary to refer.

In 1849, an act was passed amending the revised statutes relating to summary proceedings, so as to confer jurisdiction of such proceedings upon justices of the peace. (Laws of 1849, p. 291, eh. 193.) One of the sections of said act provides that the proceedings before a justice of. the peace, may be removed by appeal to the county court, in the same manner, and with the like effect, and upon like security, as appeals from the judgments of justices of the peace in civil actions, but that in case of appeal by the tenant, in order to stay the issuing of a warrant or execution, security should also be given for the payment of all rent accruing or to accrue upon the premises, subsequent to the application to the justice. (§ 5, subd. 2.)' It is by virtue of the latter clause of the section, that the undertaking given in this case is claimed to have operated as a stay. The defendant’s counsel insists, however, that the provision as to a stay, does not apply to proceedings instituted against a tenant solely on the ground that he is holding over after the expiration of his term; and I am inclined to think, in view of the provisions of the Revised Statutes in pari materia, that the construction contended for by him is correct.

The Revised Statutes provide that summary proceedings to remove tenants may be resorted to in four distinct classes of cases : 1. Where the tenant holds over after the expiration of his term. 2. When he holds over after default in the payment of rent. 3. When the tenant has taken the benefit of an insolvent act, or of an act relieving him from imprisonment ; and 4. Where such person continues in possession of real estate which has been sold under execution against him, after title under such sale has been perfected. (2 B. S. 512, § 28.) Section 43 provides that whenever a warrant shall be issued for the removal of the tenant, the relation of landlord and tenant between the parties shall be deemed to be canceled and annulled. The next three sections provide for a stay of the issuing of the warrant in each of the last three clauses, on security being given by the tenant as required by the statute. In the case of a proceeding for the non-payment of rent, the tenant is to pay the rent due and the costs, or to give security for the payment of them in ten days ; and by an amendment adopted in 1857, if he does not within the ten days, produce to the magistrate satisfactory-evidence that the rent and costs have been paid, the warrant may issue at any time thereafter. (Laws of 1857, oh. 684, p. 510, § 4.) When the application is founded upon the fact that the tenant has taken the benefit of an insolvent act &c. the tenant must pay the costs and give security for the payment of the rent as it shall become due. And when it i's founded upon an alleged sale by execution, the occupant must pay the costs, file an affidavit that he claims possession by virtue of some title or right acquired after the premises were sold, or as guardian or trustee for another, and execute a bond to pay the costs which may be recovered against him in any ejectment that may be brought by the applicant within six months ; to pay the value of the use and occupation of the premises from the date of such bond, till the applicant shall recover possession in such ejectment; and not to commit waste. But no provision is made for staying the issuing of a warrant in the case of an application on the ground that the tenant is holding over after the expiration of his term. Section 47 provides for a certiorari from the Supreme Court, to review any adjudication made in such proceedings, but it directs that the proceeding shall not be stayed by such certiorari or any other writ or order of any •court or officer. Section 48 provides that whenever any such proceedings brought before the Supreme Court by certiorari shall be reversed or quashed, the court may award restitution to the party injured, with costs. And the 49th section provides that in all cases the prevailing party' shall recover costs, and may maintain an action to recover them; and if the proceedings be reversed or quashed, by the Supreme Court, the tenant may recover any damages he may have sustained by reason of such proceedings, with costs, in an action on the case. While, on the one hand, the stringency of these provisions evinces the design of the legislature to make the proceedings summary to which they relate, on the other hand, they attempt to protect the substantial rights of tenants, and they are severally applicable, as well to proceedings before justices of the peace under the act of 1849, as to those instituted before any of the other magistrates, to whom jurisdiction was given by the Revised Statutes. The jurisdiction of justices of the peace, is conferred, not by an independant statute, but by an amendment of section 28 of the Revised Statutes, the effect of which is to include justices of the peace among the magistrates who are vested with jurisdiction by. that section. But the provisions of the act of 1849, respecting a stay of the issuing of a warrant, apply exclusively to proceedings before justices of the peace. If they have the effect which the counsel for the plaintiff attributes to them, it follows that a tenant holding over after the expiration of his term, if proceeded against before a justice of the peace, may stay the issuing of a warrant after judgment against him, but not if he is proceeded against before any of the other classes of magistrates having a co-ordinate jurisdiction. And if this be so, the right is of little value to tenants proceeded against on that ground, since it is in the power of landlords to deprive them of it, by instituting proceedings before some magistrate other than a justice of the peace. The better construction seems to be that the section of the act of 1849, above referred to, does not create a right to stay the issuing of the warrant in a case where it did not previously exist, but it merely provides that in order to exercise the right to stay, in cases where it previously existed, security shall be given as therein prescribed. The language is, not as in the sections of the Revised Statutes in pari materia ; (2 B. S. p. 515, §§ 44, 45, 46 ;) the issuing of the warrant “shall be stayed” if the tenant shall give the security prescribed, but it is “ in order to stay the issuing of such warrant ” security shall be given, &c. This implies a right to stay, already existing, and it prescribes the form of security to be given in order to exercise such right. It is by no means clear that the section supercedes the provisions of the Revised Statutes, even as to the form of security, or that it does any thing more than to require an additional security in the case of an appeal; but it is not necessary to decide that point.

The construction above adopted gives full effect to the language of the section; leaving it to operate on the three classes of cases in which a right to stay the issuing of a warrant is given to the tenant, by the Revised Statutes.

The proposition that the appeal, of itself, deprived the justice of authority to issue a warrant, requires but a moment’s consideration. If the legislature intended that an appeal should have that effect, it was useless and unmeaning to enact that in order to stay the issuing of a warrant, security should be given, in addition to that required on appeal. The appellate court could not issue a warrant upon the judgment of the justice, and if the justice could not do it, by reason of the appeal, the giving of further security to prevent it would be an idle ceremony. I apprehend that an appeal taken by virtue of this statute, of itself, merely transfers the proceedings to the county court for the purpose of review, and does not affect the power of the justice to issue a warrant to enforce his judgment.

If these views are correct, the warrant was regular and valid, and the defendant having been put into possession of the premises by virtue of it, was justified in using so much, force as was necessary to defend himself and maintain his possession.

But as the construction of the statute is not altogether free from doubt, and there are other views of the case leading to the conclusion above stated, I will briefly consider them:

If it be assumed that the justice had not power to issue a warrant after the appeal, nevertheless his judgment, until reversed or set aside, was of force as an adjudication, and it determined that the lease had expired, and Harpending was entitled to the possession of the premises. The fact that an appeal had been taken, to another court, did not affect the conclusive nature of the judgment as a bar, while it remained unreversed. (Harris v. Hammond, 18 How. Pr. 123.) The counsel for the defendant requested the court to charge to that effect, hut the learned judge declined, and charged that the judgment ceased to he res judicata when the appeal was perfected with security. The point was material to the defendant, for even if he was stayed from suing out a warrant on the judgment, yet in this collateral action he was entitled to use the judgment as evidence of his right to the possession, and it was important to him to maintain that he had such right. I conceive the ruling on this point was erroneous.

But let it be further assumed, not only that the warrant was void, but also that the judgment had ceased to be a bar, and that it was an open question whether the tenancy had terminated or was still in force ; how then stands the case ? The landlord, and the owner in fee, claiming that the term had expired, enters without process and without force, during the temporary absence of the tenant, but the tenant attempting soon after to oust him by violence, the landlord resorts to force to maintain his possession. Which committed the first assault ? There is not a particle of evidence that the plaintiff was entitled to the premises. His lease is not shown, and nothing appears on that point, except that he claimed that the term continued till. April, 1866, and the defendant disputed the claim. The defendant, when he entered, was not guilty of an assault, or a breach of the peace. Even if it be assumed that he was a trespasser, his position was very different from that of a mere stranger. He owned the premises in fee) and claimed to be entitled to the possession. Under these circumstances, the plaintiff had no right to take the law into his own hands, and attempt to dislodge the defendant by force, although his intrusion was but recent. The defendant, being in the actual possession, had a right to maintain it, and to use force, if necessary, for that purpose. This precise point was adjudged by this court in the case of Parsons v. Brown, (15 Barb. 590.)

The defendant being justified in using so much force as was necessary to defend himself and maintain his possession, the only question for the jury, in any view of the case, was whether he used an excess of force.

[Monroe General Term,

June 3, 1867.

The result is, that a new trial should he ordered.

Ordered accordingly.

J. C. Smith, E. D. Smith and Johnson, Justices.]  