
    Mary Newman et al. vs. Thomas Mackin.
    In an action for unlawful detainer, where a tenancy on the part of the defendant from the plaintiff is shown, it is not competent for the defendant to object to the want of right of possession or of property in the plaintiff; the tenancy being proved and its expiration, the right of the plaintiff to recover is clearly established.
    A party in possession of real estate, who is sued for an unlawful detainer, cannot defeat the plaintiff’s right by abandoning the possession to another; such third party will occupy the same relation to the plaintiff that the defendant did.
    A witness cannot be interrogated as to the generally bad moral character of another witness; the question should be confined to the reputation of the witness for truth and veracity.
    Where the relation of landlord and tenant is shown to exist between the plaintiff and defendant in an action of unlawful detainer, it is not competent for the defendant or one coming in under him, to prove by documentary evidence of title the want of title in the plaintiff.
    Where, on the trial of an unlawful detainer, the proof was that the defendant, soon after the institution of the suit, abandoned the possession, and other persons intruded into the premises, claiming not for her, but for themselves: Held, that she could not be responsible for the rent which accrued after her abandonment.
    Where the jury, in an action for unlawful detainer, have assessed more rent than is lawfully due, the plaintiff may, by remitting the excess, obtain a judgment in the high court of errors and appeals, for what the proof shows him to have been lawfully entitled to.
    • In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.
    
      Thomas Mackin sued Mary Newman in an action of unlawful detainer before three justices in the city of Natchez, who, upon a trial and verdict before them, awarded a judgment according to the statute, from which she appealed to the circuit court and gave Robert McCullough as her surety. That court subsequently tried the case, and awarded a second time judgment for the plaintiff upon a verdict of a jury, assessing, in addition to the, right of possession, fifty dollars for arrearages of rent. The facts on which the case turned are sufficiently stated in the opinion. In both courts the defendant below moved to quash the warrant and dismiss the proceeding, because the court of justices was an unconstitutional one: but the motions were overruled. The defendant below sued out this writ of error.
    
      Sanders and Hag gin, for plaintiff in error, argued,
    1. That the court of justices was unconstitutional.
    2. That the proof did not sustain the verdict.
    3. That the proof should have been admitted to show that Mackin himself was but a tenant, and his leasehold interest was at an. end,
    
      Davis and Cox, with whom was Montgomery and Boyd, for defendant in error.
    1. The justice’s court, before which the cause was originally tried, is a constitutional tribunal. Art. 9, § 24; Thomas v. The State, 5 How. R. 20; and Houston v. Royston, 7 lb. 543. The question specifically, however, is set. to rest by a recent decision of this court, in Rale' v. Fyler, 10 S.-& M. 440.
    2. The court properly excluded the testimony of the witness, “as to the general moral character of one of the witnesses in behalf of plaintiff, and whether it was good or bad.” 1 Greenl. Ev. § 461, and notes. In Douglass v. Tousey, 2 Wend. R. 352, the court say, “all are agreed that the true and primary inquiry is into the witness’s general character for truth and veracity.”
    3. Nor did the court below err in excluding the testimony offered by defendant, to show that the plaintiff had no title to the premises in controversy. By inspecting the evidence, as embodied in the bills of exceptions, it will be found that defendant had entered into the occupation of the property, as tenant from month to month, of the plaintiff; had frequently acknowledged him as her landlord; had paid him rent therefor; had been sued as such tenant for arrears of rent, and had allowed judgment to be recovered against her; and when holding over, and being sued with notice to quit, had not pretended to disclaim her tenancy. In the face of such proof, the documentary evidence offered by defendant was plainly inadmissible. 1 Caines, Rep. 444; 2 lb. 215; 1 Cow. Rep. 575 ; 3 Johns. Rep. 514; Balls v. Westwood, 2 Campb. 11; 1 Greenl. Ev. § 25.
    4. If, to this, it be replied, that the documentary evidence offered by defendant was not to dispute the title of the plaintiff as landlord, but to show that his title had; expired, we rejoin, first, that it is untrue in fact, as the evidence had no such tendency; and, secondly, that if relevant in fact, it is inapplicable to unlawful detainer, which, under our statutory provisions, stands upon a very different footing from ejectment. In the latter action, the paramount legal title is alone in issue; in the former, only the right of possession is in controversy. In ejectment, the defendant, (if not in someway estopped,).can show title in any, the remotest stranger with whom he pretends no privity; in unlawful detainer he can disprove only, (in the words of the statute,) “ that he continues to hold it (the property) against the consent of the party entitled to the possession thereof.” H. & H. 564, § 71. And the party so entitled to possession may be “as tenant of the freehold, tenant for years, or otherwise.” And in Loving v. Willis, 4 How. Rep. 383, it was held, that “the writ of unlawful detainer is a possessory action merely, and the title of the parties and the right of property are not involved in it.”
    5. Again, there was no privity shown, or .attempted to be shown, between the defendant arid John Roy, who, it was claimed, was entitled to the premises. This was indispensable. The rule is emphatically laid down in Balls v. Westwood, 2 Campb. R. 11, by Lord Ellenborough, as follows: “ You may as well attempt to move a mountain. You cannot counteract the continuance of the title of the person under whose demise you continue to hold. The security of landlords would be infinitely endangered if such a proceeding were permitted.”
    Nor, had such a privity been shown, was it pretended that it was with the consent of Mackin, the landlord? Without such consent, any attornment of the tenant was void. H. & H. 349, § 31.
    6. Further, had defendant’s documentary evidence been ad mitted, it would have availed nothing, in itself considered. Unless there had been also proof, that the defendant “disclaimed holding of the plaintiff, and entered afresh under the new landlord,” the result must have been the same. Balls v. Westwood, 2 Campb. 11.
    And it is well settled, that a new trial will not be granted for the improper exelusion of testimony, when it is apparent .that, had the -testimony been admitted, the result would have been the same. McMullen v. Mayo, 8 S. & M. 298; Barringer v. Nesbií, 1 lb. 22.
    And as the testimony offered was irrelevant, except as connected with the further testimony of a disclaimer and fresh holding, on the part of defendant, and no such further evidence was offered or attempted to be shown, it was properly excluded as both irrelevant and inadmissible. For, say this court in a recent case, “Where testimony is offered and excluded, and such exclusion is excepted to, it must be shown affirmatively, during the trial, that such testimony was relevant and pertinent.” Torrey v. Fisk, 10 S. & M. 590.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a case of unlawful detainer. A tenancy of the defendant, under a letting from the plaintiff, is very clearly made out. It was not competent, therefore, to the defendant, to object-to the want of right of possession or of property in the" plaintiff. Having admitted the right by accepting the lease, she was estopped from denying it, at least, until she had surrendered 'the possession, and placed the plaintiff in the same situation which he occupied before the lease. Willison v. Watkins, 3 Peters, 50.

The right of the plaintiff to recover the possession was, consequently, clearly established by proof of the tenancy, and that it had expired.

But the defendant abandoned the possession after this suit was brought, and another person was in possession at the time of the trial, claiming to hold for John Roy, who set up claim to the premises as owner. There is even some conflict in the testimony, as to the time Mrs. Newman left the premises, whether before or after this action was commenced. But the jury found for the plaintiff, which they could not have done, except upon the ground that she was the occupant at the time the process was served.

It does not appear that Roy took possession of the premises, by virtue of any contract with Mrs. Newman, or that she surrendered the possession to him. If that were the case, upon well established principles, he would occupy the same relation to the original lessor, which she did. Adams on Eject. 57, n. 2; Jackson v. Davis, 5 Cow. 123; Same v. Harsen, 7 Cow. 323; Adams, Eject. 247. But Roy was not admitted as a defendant in the case, and it is difficult to see how he could interpose his rights, in the controversy, between the plaintiff and Mrs. Newman. It is also a general principle, that he who takes property, during the pendency of a suit in regard to it, from one of the parties, is in equity affected with notice. During the pendency of an ejectment, if the possession be changed, the land would be liable to the execution. If the judgment be against the casual ejector, the execution is an authority for ejecting the tenant. And if the sheriff be disturbed in the execution of the writ of habere facias possessionem, an attachment will go against the party, whether he be the defendant or a stranger. Adams, Eject. 309, 310. It seems to us, therefore, that Roy is bound to give up the possession, and must institute other proceedings to bring his rights to the test.

The question as to the generally bad moral character of one of the witnesses was properly excluded. It should,have been confined to . the reputation of the witness for truth and veracity.

The deed of mortgage, and the several written leases, offered in evidence to show that the plaintiff had no right to the possession of the lots, were properly excluded, because, as has already been shown, neither the tenant nor one coming in under the tenant can dispute the right of the lessor.

The verdict and judgment for the premises were correct. But the proof is, that the defendant abandoned the possession immediately after the bringing of this suit, and that other persons intruded into the premises, claiming not for her, but for themselves. She could not, therefore, be responsible for the rent which accrued after her abandonment.

The defendant in error, however, has offered to release this part of the verdict, which he has the right to do. The judgment will, therefore, be reversed, and this court proceeding to give the judgment, which the court below should have given, directs judgment to be entered for the lot in dispute.  