
    George Lane vs. Joel Marshall.
    Appeal.
    The act of 1821, ch. 14, providing for the removal of cases of forcible entry and detainer, by certiorari from the cognisance of a justice of the peace to the circuit court, authorizes a re-trial of the facts in said court by a jury.
    A party to be guilty of forcible entry and detainer, under the 2d section of said act, must enter into possession of the premises, when actually adversely hoi* den.
    To constitute a tenant, who holds over against his landlord, guilty under the provisions of the 5th sec. of said act, there must have existed a contract of rent or lease for a definite period, and the tenant must hold over after receiving written notice to surrender the possession.
    This was a writ for a forcible entry and detainer, tried before John Mitchell, John Hickey and. Thomas Branson, esquires, justices of the peace for Marion county. The complaint is in the following words: “ I, George Lane, hereby make complaint against Joel Marshall, yeoman, late of said county of Marion, for making a forcible entry and detainer, or unlawful entry and detainer, upon a certain messuage or tenement of land situate in said county, adjoining the entry of the said Joel Marshall, at his residence, and to said land I hold title by grant from the state of Tennessee, and by purchase of the occupant possession from John Hickey, junr., and was in the peaceable possession thereof on the first day of October last,. (1823) and some time thereafter, he, the said Joel, did enter forcibly and unlawfully upon the said land, and continued to detain the same from me, although of him possession was demanded; I therefore request you to issue a precept under the act of assembly, for forcible entry and detainer, as I wish thereon to proceed against said Joel Marshall.
    George Lane.”
    At the trial before the justices, all the evidence was taken down; and the defendant having been found guilty, and judgment of restitution awarded, he removed the proceedings by certiorari to the circuit court of said county, where a motion was made to quash the proceedings, which, after argument had thereon, the court overruled, and retained the cause for trial in that court; and afterwards, at April term, 1825, the cause was tried before a jury, who returned a verdict of guilty. A motion was made for a new trial, which was overruled by the court, and judgment entered up against defendant; from which he appealed to this court.
    The bill of exceptions, taken at the trial, presents the following state of facts: John Burgess, a witness, proved that he went, with the plaintiff in the fall of 1823, to the house of John Hickey, and heard a conversation between plaintiff and Hickey, near the centre of the field which said Hickey had in cultivation, and which was the improvement claimed by said JHickey, that Lane wanted something for the rent of the place, that Hickey said in answer to this, that he had cleared some land, and made additional improvements, and that the improvements ought to balance the rent — that Hickey further said, he was willing to give up the possession, but Lane replied he was not then in a situation to take and keep the possession. The plaintiff also proved, that Hickey had been paid $140 by Lane, for the value of his improvements; that Hickey had stated he bought the land in question of Ferguson, and that he had procured defendant to take his place, and also to take up his obligation to Ferguson, and that Hickey had admitted Lane was entitled to the possession. It was further proved, that Hiclcey had two fields, one a large and the other a small one, that the defendant had sowed small grain in the large field in the fall of 1823, and that he had a turnip patch in the small one, but when he took possession of either, was not proved. It was proved, that the plaintiff offered to sell the land to defendant, but that defendant said he could not buy, having purchased from Alexander Ferguson — the plaintiff then demanded the possession of the' defendant, which was refused.
    John A. Knight proved, that he had settled on the place in dispute in February, 1817, and remained there after improving it, until November, 1819, previous to which time he had bought the land from one Danforth, and had taken a bond from him for a title in fee simple, within certain bounds, which would include the land now in dispute; that John Hickey, jr. had purchased an improvement from one O’Neill; that in the fall of 1819, witness and Hickey had exchanged improvements, and that Hickey afterwards bought the right to the land from A. Ferguson, and received a bond for the title from him; and that Hickey got defendant to take his place, to take up his (Hickey’s,) notes given to Ferguson for the land, and Hickey was to give up the possession of the land to defendant; that defendant did take up Hickey’s notes, and took a bond from Ferguson for the title, and Hickey gave up to Ferguson the bond he held on him for the title; that defendant took possession sometime in the fall of 1823, whether before or after Hickey left the premises, witness did not know..
    John Kelly proved, that on the 21st of November, 1821, he was called upon to survey the plaintiff’s entry; that he would not survey until the improvements of Hickey, which would be comprised in the survey, were paid for, or a note given for payment; that the improvements were valued at $>140, and that plaintiff drew-his note with security for that sum, which Hickey refused, because he had before that time purchased of Ferguson the land including said improvements ; that, upon the tender of the note and refusal by John Hickey, Charles Hickey, brother of John, said he would take the note; — this was done by Charles, without the assent or refusal of John. Witness then ran out the land, and the house occupied by Ilickey, with some cleared land, was not included in the survey, but the greater part of the cleared land was included. The plaintiff’s entry was dated 7th April, 1821. THe bond to convey from Ferguson to Hickey was dated 31st May, 1821.
   Catron", J.

delivered the opinion of the court. In the consideration of the legal questions, arising upon the proceedings and facts in this cause, the attention of the court has been principally directed to two.

First. Did the legislature intend,by the act of 1821, ch. 14, to authorize the circuit court to re-try the issue of fact by a jury? This court is of opinion, that the intention of the legislature was to give power to the circuit court to bring up the whole cause by a writ of certiorari to that court, and either to quash the proceedings for good cause, or to order another trial of the issue of fact.

Secondly. Taking for true, and as upon demurrer to evidence, all the proofs introduced by the plaintif Lane, to sustain the allegations in the complaint and process charging the offence — and are there any facts proven, that warranted the jury in finding Marshall guilty of the charges, or any of them, alleged against him.

He is charged in the words of the act, in the disjunctive, with all the offences enumerated in the statute, without giving any opinion, whether the charges in the complaint and process, are well founded. We will proceed to examine whether the evidence, by any reasonable inference, could have authorized a verdict of conviction.

From the proofs, the defendant, Marshall, could not have been guilty of a forcible entry or forcible detainer, within the meaning of the second section of the act; because, to have been so, he must have entered into the possession of the premises, when actually adversely holden by Lane; whereas Lane never has had the possession of the land, from any thing appearing in the record. The object of the writ of forcible entry, according to the second section of the act, is, to keep him in possession who first lawfully oh» tained tbe same; and, all considerations of title aside, to restore such possession, if it be forcibly taken, or withhol-den, by one entering upon such actual previous possessor.

It is pretty manifest, that the defendant, Marshall, was found guilty of a supposed violation of the fifth section of the act; the jury having deemed him in possession under John Hickey, who, it was apprehended, was the tenant of Lane. It must be remarked, that the fifth section of the act of 1821, introduces a new' feature in this mode of proceeding, and presents cases not provided for by any of the British statutes for the operation of the writ of forcible entry and detainer. To the new cases alone, described in the fifth section, can the remedy be applied. What are these leases? If (says the statute,) any tenant, for a term of life or lives, year or years, shall wilfully, and without force, hold over against the remainderman or landlord, the lands possessed after the expiration of the estate for life, or the term, and after demand made, and notice in writing given, to deliver the possession to the remainderman or landlord, then such tenant shall be guilty of an unlawful detainer within the act, and subject to be turned off by the writ of forcible detainer; and all those claiming by any means under such tenants for lives, or years, shall, in reference to the remainderman, or landlord, be deemed in no better situation than those under whom they claim.

To ascertain then the character of the possession of Marshall, we must look to that of John Hickey, under whom he claimed, and see if Hickey, had he continued there, would have been subject to be turned off by the writ of forcible detainer. Was Hickey a tenant for years within the meaning of the act? We take the act to contemplate a case of tenancy, when A rents or leases to B, by a contract for a definite term of time; by virtue of which contract, B takes the possession, or holds it, if already in possession of the premises, to the end of the term, and af-terwards holds over, wilfully, and in violation of his contract and contrary to the wish of the landlord, the posses-session thus acquired; upon the landlord’s demanding the possession to be restored to him, giving the tenant, holding over, notice to quit, and a refusal to comply on the part of tenant} the writ of forcible detainer may be brought by the landlord to turn the tenant off. Did the above described relation of landlord and tenant exist between Lane and Hickey? The proposition need only be stated to meet with an answer in the negative. There was between them no contract for a lease, and no definite term of tenancy, even did Hickey ever recognise the superior right to the possession in Lane, which is doubtful.

The fifth section of the statute declares a new offence* and creates a new remedy, and vests its exercise in an inferior tribunal, in which jurisdiction can only arise, when the facts have occurred, which the act has pointed out; and the steps to obtain redress, on the part of the landlord, have also been taken pursuant to the statute. One of these, and a very important one, is a demand of the possession, and a written notice to deliver it to the landlord by the tenant, or any one claiming under him. No such written notice was given to defendant Marshall; until which was done, even had he been a sub-tenant, strictly within the meaning of the act, no jurisdiction vested in the justices to turn him off by the writ of forcible detainer. For want of proof, therefore, on the trial below, of the fact of tenancy by contract, for a definite term, and for want of proof that a demand was made, and a notice in writing given to the defendant Marshall, to deliver the possession in controversy to the plaintaiff Lane, this court reverses the judgment of the circuit court, refusing lo grant a new trial, and remands the cause to that court where it may again be submitted to a jury.

Judgment reversed.  