
    
      Burns v. Haggard.
    
    Fobcibi/b Entey and Detainer, Appeal in Forma Pauperis. In the action of forcible or unlawful detainer, where there is judgment and writ of possession executed, defendant may appeal in forma pauperis.
    
    FROM ROANE.
    Writ of error to Circuit Court of Roane county, April Term, 1872. E. T. Hall, J.
    Staley & Neal, for plaintiffs in error, said :
    Haggard brought an action of detainer before three justices of the peace, t.o recover possession of a tract of land in Roane county. He obtained judgment against plaintiffs in error, and they having prayed an appeal, he procured a writ of possession under the Act of the 9th February, 1870, (Shankland, 124), and dispossessed them. The defendants below not being able to give security, availed themselves of the law provided for poor persons. When the case was brought into the Circuit Court, the defendant in error moved to dismiss the appeal, because no appeal-bond had been given. The Circuit Judge sustained the motion, dismissed the appeal, and the cause is here by writ of error.
    The question is, had the plaintiffs in error a right to appeal from the judgment of the justices of the peace to the Circuit Court, under the pauper law?
    It is very clear they could not have so appealed, before the Act of the 9th February, 1870, ch. 64: “ For the tenant pertinaciously held on to the possession through a long course of litigation and in the end, whatever the result of the suit, he was a clear gainer of the rents and profits of the premises, and the landlord frequently had no indemnity.” Norton v. Whitesides, 5 Hum., 381-2.
    This was the construction placed on the Act of the 4th of February, 1842, ch. 86. (Nicholson’s Supplement.) This Act has been carried into the Code at section 3341.
    The reason then why the defendant could not appeal under the pauper law was, because he held on to the premises through a long course of litigation, and the landlord, if he recovered, was deprived of the rents and profits. But now, under the Act of the 9th February, 1870, the tenant cannot hold on to the premises, but may be dispossessed at once, and cannot deprive the landlord of the rents and profits. The reason of the law having ceased, the law itself ceases.
    The Act of 1842 and the Code require the defendant on appeal to give bond in double the value of one year’s rent of the premises. Code, 3362.
    It would be monstrous to turn the defendant out of possession and then require him to give bond for the rents.
    Plaintiffs in error insist that as the defendant in error has possession of the land, they can appeal as to the costs under the pauper law. _ They had possession of the land in controversy for years, and they ask that their case may be re-tried.
    
      Childeess, for defendant in error, insisted:
    The defendants in the court below were entitled to an appeal in no case, unless they give bonds as in other cases of certiorari. See sec. 3360 of Code.
    The defendants below must give bond and security to the party adjudged to be entitled to possession in double the amount of the value of the rent of land, before they can either certiorari or appeal from tbe judgment so rendered against them for the possession of the premises. See Code, sec. 3363.
    The defendant in error insists that no appeal is allowable in this class of cases, unless the party taking the appeal gives bond and security in double the value of the rents and costs; consequently there is no error in the record in this case. See 10 Yer., 516.
   Turney, J.,

delivered the opinion of the court.

The Act of 1869-70, ch. 64, is a modification of sections of the Code 3360 to 3363 inclusive, so that when in an action of forcible entry and detainer, or of forcible detainer, there is judgment for the plaintiff and writ of possession executed, the defendant is entitled to an appeal, on taking the oath prescribed for poor persons.

The policy of the older law was to secure to the plaintiff, should he be successful, rents and profits during the time he was kept out of possession pending the appeal.

The change of the law authorizing a writ of possession, as in the late act, is smply a substitution of one security for another; that is, the land itself in lieu of a bond for rents and profits.

Reverse the judgment and remand the cause.  