
    JANUARY TERM, 1844.
    James Torrey v. Robert Cook.
    In an action of unlawful detainer, the plaintiff introduced a witness, and proposed to prove that the defendant did unlawfully withhold a tract of land and tenement, as described in the affidavit; held, that the testimony was legitimate, and ought to be admitted.
    If the affidavit be in the language of the statute, and the land be proved as described in the affidavit, it is sufficient.
    Error from the Circuit Court of Holmes county.
    The facts are fully stated in the arguments of counsel, and the opinion of the Court.
    
      Lonsdale, for plaintiff in error.
    This is a writ of error, prosecuted by the plaintiff in error to a judgment of the Holmes Circuit Court.
    The plaintiff sued out from a Justice of the Peace, a warrant, charging that the defendant, and 'Washington Stanfill, unlawfully, and against his consent, held him out of the possession of a tract of land, with the appurtenances, lying and being in the county of Holmes, containing six hundred and forty acres. Upon the return of the warrant to the Justices Court, he dismissed as to Stanfill, and obtained a verdict as to Cook, from which Cook appealed to the Circuit Court.
    The parties went to ¿rial in the Circuit Court, upon the record as sent up from the Justices Court; during the progress of which, the plaintiff introduced a witness, and offered to prove by him that the defendant, Robert Cook, did unlawfully, and against the consent of the plaintiff, withhold from him the possession of a tract of land, containing six hundred and forty acres, lying and being in the county of Holmes. To the introduction of which proof the defendant objected, and the Court sustained the objection and ruled out the testimony. To which the plaintiff excepted at the time ; and thereupon the jury found a verdict for the defendant.
    
      The counsel for the plaintiff insists, that, in the opinion of the Circuit Court, in ruling out the evidence offered, manifest injustice is done him, and that in that opinion the Court below erred; and the warrant is precisely copied from the statute, and is in every respect all the law does or should require. See How. & Hutch, p. 564. There is no force in the objection to it for want of a sufficient description of the premises. None other is required ; and the writ of haberi facias is to be executed at the peril of the plaintiff. See 5 Littell’s Rep. (Ky.) 323 ; 2 J. J. Marsh. 389.
    But again, it is contended by the plaintiff, that even if the warrant was liable to the objection taken to it, it was too late to make it after the jury, in the very language of tfye warrant and of the law, had been sworn to try the issue between the parties. It was idle and superfluous to empannel a jury, if the party was not to be permitted to prove his case, as stated, and upon which issue was joined, by going to trial before the jury upon the statement made by him in the warrant. The proceedings may be compared to those in trespass quare clausum, fregit; and there, if the plaintiff have but one general count in his declaration, and the defendant plead liberum tenementum, unless the plaintiff new assign, and set out his land by its metes and bounds, the defendant will succeed if he prove title to a tract of land anywhere within the county. But if he plead not guilty, the plaintiff’s declaration need not describe the land, and the trespass upon which is complained of; so in this proceeding, by pleading, in substance, not guilty, he is not entitled to more than such description as is given in the warrant in this cause.
    
      W. R- Miles, for defendant in error.
    ■ This is an action of forcible entry and detainer, brought to recover a tract of land in Holmes county.
    When the cause was first tried before the Justices, a verdict was found in favor of the plaintiff. An áppeal was taken to the Circuit Court, and a verdict found in favor of the defendant. To reverse the last verdict and judgment, this writ of error is now prosecuted.
    On the trial in the Circuit Court, the plaintiff offered to prove, that the defendant did withhold from him a tract of land ; but this evidence being objected to, the Court refused to let it go to the jul7-
    But one question is presented by the record. ■ Is the land sufficiently described in the warrant ? I answer, No. Being insufficiently described, the Court very properly refused to hear the evidence offered.
    There must be a reasonable certainty in the description ; otherwise the clerk could not issue, nor the sheriff execute the writ of habevi facias possessionem. The judgment pronounced would be void for uncertainty. The description of the land, in a warrant in this form of action, should be as accurate as the description of land in a declaration in ejectment. Moore v. Massie, Litt. Rep. 297.
   Mr. Justice Thacher

delivered the opinion of the Court.

Torrey exhibited his complaint before a Justice of the Peace of Holmes county, against Cook, for unlawfully, and against his consent, withholding from him certain acres of land in that county. Upon a verdict being rendered in favor of complainant, Cook appealed to the Circuit Court, and prevailed ; from whence the case comes here by a writ of error sued out by Torrey.

The bill of exceptions discloses, that, upon the trial in the Circuit Court, after presenting to-the jury the affidavit upon which the action was founded* and the various legal documents incident thereon, the plaintiff introduced a witness for the purpose of establishing, by his testimony, that the defendant, Cook, did unlawfully withhold from him a tract of land and tenement in the county of Holmes, as described in the affidavit; but he was not permitted by the Court below to make the desired proof.

We do not see any objection to this question on the score of legality. It does not appear, from the bill of exceptions, that any previous or subsequent question had been asked which could explain the impropriety, if it existed, of this question. On the contrary, as a preliminary and introductory inquiry, its appropriateness cannot be doubted. We gather, however, from the briefs, that the objection to it arises from its uncertainty and too great generality in not defining particularly the tract of land intended in the query. But it is framed in the language of the affidavit, which is itself made in the words of the statute. H. & H. 564, s. 72. The propriety of the question rpay then also be viewed by a consideration of the sufficiency of the description of the land in the affidavit. Here it would perhaps be enough to say, that the statute having pointed out the form of the affidavit, further investigation is unnecessary. The statute has defined the requisite certainty and precision of description. Yet if the same degree of particularity of description is expected as in ejectment, it will be remembered, that the modern rule has greatly relaxed the rigidity of the ancient on this point, and does not require an exact identification of quantity or boundary. In the event of recovery, a plaintiff takes possession at his peril, and should a question afterwards arise, what land has been recovered, that inquiry is satisfied by a reference to the proofs upon the trial, as well as to the records of the case. For both the above reasons, the question propounded to the witness seems legitimate.

The judgment of the Court below must be reversed, and a new trial granted.  