
    Grice v. Ferguson.
    
    1. Tile complaint was for an unlawful entiy, and a forcible and unlawful detainer. he summonses to answer for a forcible entry and detainer, variance cured by plea to tin merits
    2. In roceeding for forcible entry and detainer, notice for delivery of possession not npcessary.
    3 Complaint for forcible entry and detainer, verdict guilty of unlawful detainer, does not respond to the issue.
    This was a case of forcible entry and detainer, tried before a justice of the peace, in Dallas county. The jury-found the defendant Ferguson, guilty of an “unlawful detainer,” and the magistrate gave judgement of restitution. Ferguson by certiorari, removed the case to the Circuit Court, where the judgement was reversed on the following grounds.
    1. That the justice erred in refusing to quash the proceedings ; the complaint alleging the entry to be unlawful, and the detainer to be forcible and unlawful, and the summons varying from the complaint, and stating the injury to be a forcible entry and detainer.
    2. The justice erred in permitting evidence to prove the loss of the written notice to defendant, demanding delivery of the premises
    3. The verdict found the defendant guilty of an un-Jawlul detainer, when the plea was that he was not guilty of a forcible detainer,
    
      Grice prosecuted a writ of error to this Court, and assigned the judgement of the Circuit Court as error.
    Thorington, for plaintiff.
    H. G. PERRY, for defendant in error.
   JUDGE CRENSHAW

delivered the opinion of the Court.

The statute provides for a case where the entry may be lawful or peaceable, and the detainer forcible, and though the summons states the entry as well as the detai-ner, to be forcible, the variance was not material; n orto-ver. the objection was waived by defendants appearance, and plea to the complaint.

Notice for the delivery of possession, is required only where a tenant without force holds over, after the expiration of his term, and is not necessary in a case of forcible detainer. The evidence objected to was therefore immaterial.

As to the third ground, an unlawful'detainer, and a forcible detainer, are by statute, made distinct injuries. The verdict does not dispose of the issue joined between the parties. On this ground, we think the Circuit Court was right in reversing the magistrate’s judgement, and that the judgement of the Circuit Court must be affirmed.

Judge Saitold not sitting.  