
    Enoch Hendrickson vs. Joseph Hendrickson.
    To authorize a verdict and judgment for the complainant in an action of forcible detainer, proof must be made of force, menaces or threats, or of such circumstances as tend to excite fear or apprehension of danger.
    Upon the return of the certiorari in this case which brought up the proceedings in an action of forcible detainer, the attorney of the' plaintiff in certiorari, obtained a rule upon the justice to certify whether there was any evidence produced at the trial of the holding or keeping of the •premises by force, or strong hand or weapons or violence or menaces or terrifying words, circumstances or actions having a natural tendency to excite fear or apprehension of dangér. The justice replied that he did not recollect distinctly what the witnesses said. Whereupon, a rule was granted to the plaintiff in certiorari, to take affidavits to prove what was the nature of the evidence offered at the trial upon this point. Affidavits were accordingly taken, by which it was shewn that no evidence was offered at the trial of the holding of the premises by force or strong hand or weapons or terrifying words, circumstances or actions having a natural tendency to excite fear or apprehension of danger.
    
      *Hamilton
    
    moved to reverse the judgment because there was no evidence of a forcible detainer.
    
      Wall, contra.
   By the Court.

This judgment must be reversed because there was no proof of that force which is essential under our statute (Rev. Laws 349) to maintain a complaint of forcible detainer. There must be force, menaces or threats, or such circumstances as tend to excite fear or appreciation of danger. The affidavits which have been read clearly shew that no such proof was given on the trial. When there is some evidence, we do not inquire as to its sufficiency to support the complaint. But whenever it appears that there was no legal evidence, this court are bound to interfere; otherwise the party is remediless, as the justice cannot grant a new trial.

Judgment reversed.

Note. The same question came before the court in September term, 1830, in the case of Hankins v. Hamilton in forcible detainer, and one of the reasons relied upon for the reversal of the judgment was, that there was no evidence of such force as would constitute a forcible detainer under the statute. The Chief Justice said, the evidence on this point was not very full or decisive. But there was some evidence of circumstances having a natural tendency to excite fear and apprehension of danger. The effect of the evidence was a proper question for the jury, and having been expressly put to them by the justice and been decided by them, we.do not think we are authorized to interfere. We do not mean to say that we may not interfere where there is no evidence of force.

Judgment affirmed.  