
    George Yager v. Abraham Wilber.
    The remedy of forcible entry and detainer extends to all eases of entry or maintenance of possession by actual force, and is not limited to the cases enumerated in section 19 of the statute regulating proceedings in forcible entry and detainer.
    Error to the common pleas of Jackson county.
    The record shows a writ of certiorari from the court of common pleas, hy which proceedings, in forcible entry and detainer, before-two justices, were brought up and reversed.
    The justices’ record shows a complaint to them by Yager, that Wilber, with a strong hand, forcibly and unlawfully “entered upon the premises, and with force and strong hand, as aforesaid, doth yet unlawfully hold possession thereof;” that the case came duly to trial, “the proofs and allegations of the parties were fully heard;” their title papers exhibited to the jury; a verdict of guilty, and a judgment of restitution rendered.
    The court of common pleas reversed this judgment, because the complaint did not set forth that Wilber was either a tenant holding over his term, or a judgment debtor in possession, or an occupier without color of title. To reverse this judgment of reversal in the common jileas, is the object of the present suit.
    *J. T. Brazee, for the plaintiff in error:
    Contended that section 1 of the act regulating'proceedings in-cases of forcible entry and detainer, being general, covered every case of unlawful and forcible entry and detainer, or of forcible detainer only, and was not controlled by section 19 of the act, and therefore that the justices in this case had jurisdiction of the complaint. The section referred to provides “ that two justices of the peace shall have authority to inquire, by jury, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully, and by force, hold the same.” 29 Ohio Ii. 211.
    But if the court should think this general clause controlled by section 19 of the act, then he insisted the record did not affirmatively show that this case is not embraced in that section.
    
      A. G-. Thurman, contra:
    Presented section 19 of the act regulating proceedings in forcible ■entry and detainer, in these words:
    
      “ That proceedings under this act may be. had, in all cases, against tenants holding over their term; in sales of real estate on execution, after such sales have been examined by the proper court, and the same by said court adjudged legal; where the judgment debtor was in possession at the time of the rendition of the judgment, by virtue of which sale was had; and where the-defendant is a settler or occupier of land, without any color of title, and to which the complainant has the right of possession.” 29 Ohio L. 214.
    He contended no action could be sustained under the act, but one of the enumerated cases in section 19, the legislative object in passing that section being most palpably only to restrain the action to those cases, as is seen by reading sections 1 and 19 of the act together as a whole. The construction contended for on the other side, would directly conflict with section 109 of the justices’ act, which provides that the jurisdiction of justices shall not extend to “actions on contracts for real’estate; or actions in which the title to lands and tenements *may be drawn in question, except actions for trespass on real estate,” provided for in the act. 29 Ohio L. 190.
   Judge Lane

delivered the opinion of the court:

The question for the decision of the court is, whether section 19 of the “act to regulate the action of forcible entry and detainer,” 29 Ohio L. 210, limits the proceeding under the act to the cases enumerated in that section. One of our most valuable elementary publications, Swan’s Justice of the Peace, 296, expresses an affirmative opinion upon this question. A contrary practice, however, has long obtained in this state, and our present examination leads us to hold this practice correct

Proceedings in forcible entry and detainer are not a remedy of the common law, but were given by statute. The first we find punishing such is in the 5 O. 2, c. 18; the first which seems to provide for the restitution of the lands to the ejected tenant, 8 Hen. 6, c. 9; but this object is more fully accomplished by later .statutes. The object in all these cases is, not to try the right, but -to repress force,' even where exerted under color of right, and to induce men to apply to the laws for relief, instead of seeking to do themselves justice, especially by means which the law abhors. The entry or detainer must, therefore, be by force and strong hand, actual violence, or the remedy is not given by statute.. These words are essential, and mean, says Justice Gross, 7 Term, 308, something more than a common trespass.

Such was the state of the English law at the settlement of our state. Our first statute was adopted by the governor and judges from Massachusetts, in 1795. It is directed against those who make unlawful and forcible entry, and restitution is made, if the jury find the premises are held unlawfully, with force and a strong-hand. 1 Chase’s Ohio Stat. 188. “ It is clearly established (says-Dane) that in Massachusetts, even a right of entry is to be effected in a peaceable manner.” 4 Dane Abr: 732. And the English authorities show that if one having a right to enter, enter manu forti, be may be indicted, notwithstanding his right, and possession restored. 3 Salk. 170; 2 Salk. 450, 479. Our subsequent statutes contained the same substantial provisions. Such are the two statutes of 1805 (1 Chase’s Stat. 482) and 1819. 2 Chase’s Stat.. 1082. They are applicable to no other cases than those accompanied with actual force. The amendatory act of 1823 (Chase’s-Stat. 1248) first extended the remedy to the new *class of cases of tenants holding over, judgment debtors, and settlers without color of title. This amendatory act leaves unimpaired the-operation of the original statute, upon entries made by actual violence, and enlarges thé remedy, by bringing within its scope, a new class of cases, which-are not necessarily attended with force-. In tlie revision of 1824, the statute assumed, substantially, itspresont form. Its ancient office, to restrain entries or detainers by actual force, was conferred by the first, and its enlarged operation over the three additional cases was continued by section 14 of the revised act. Chase’s Stat. 1359.

We find nothing, then, in the history of these changes which countenances the opinion that section 19 of the present statute was intended to restrain the powers conferred in the first. On the contrary, the omission to provide some festinum remedium, to-entries upon land accompanied with force, and necessarily leading to a breach of the.peace, would leave a chasm in our legislation.

The complaint under examination shows an entry by force. The common pleas erred in reversing the proceedings, and their judgment is reversed  