an Act concerning the Court of Justice of this State and Judicial Officers," passed March eleventh, one thousand eight hundred and fifty-one. Nothing in this Act shall, however, affect any judgment already rendered, or any order already made, under an Act entitled "An Act concerning the Courts of Justice in this State and Judicial Officers," passed March twenty-seventh, one thousand eight hundred and fifty-two; "An Act amendatory of an Act concerning Courts of Justice of this State and Judicial Officers," passed March eleventh, one thousand eight hundred and fifty-one, approved May third, one thousand eight hundred and fifty-two; the Act entitled "An Act to change the time of holding the District Court in the county of Santa Clara," passed March twenty-ninth, one thousand eight hundred and fifty-two; and the Act entitled "An Act to regulate the terms of the District Courts of the Tenth Judicial District," passed May fourth, one thousand eight hundred and fiftytwo; or any proceedings already taken, in any civil or criminal cases, in any of the Courts of this State; nor shall it be construed so as to remove from office any of the Judges of the existing Courts of this State. § 111. When this Act to take effect. This Act shall take effect on the first Monday of June next. (May 19th, 1853.) AN ACT CONCERNING FORCIBLE ENTRY AND UNLAWFUL DETAINERS.* [Passed April 22d, 1850; and Acts amendatory thereof.] The People of the State of California, represented in Senate and Assembly, do enact as follows: § 1. No person or persons shall hereafter make any entry into lands, tenements, or other possessions, but in cases where entry is given by law, and in such cases, not with strong hand nor with multitude of people, but only in a peaceable manner; and if any person from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by fine. ACT OF 1861, CHAPTER CCCCLXII, 514. Act relating to the Rights and Duties of Landlords and Tenants. SEC. 1. Wherever there is a tenancy at will, or by sufferance, created by the tenant's holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice in writing, to the tenant, requiring him to remove from the premises. SEC. 2. Such notice shall be served by delivering the same to such tenant, or to some person of proper age residing on the premises; or, if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises, where it may be conveniently read. SEC. 3. At the expiration of one month from the service of such notice, the landlord may reënter, or maintain ejectment, or proceed in the manner prescribed by law to remove such tenant, without any other or further notice to quit. SEC. 4. If any tenant shall give notice of his intention to quit the premises by him holden, and shall not accordingly deliver up the possession thereof, at the time in such notice specified, such tenant, his executors or administrators, shall, from thenceforward, pay to the landlord, his heirs or assigns, double the rent which he should otherwise have paid, to be sued for and recovered, at the same time and in the same manner, as the single rent; and 1. This statute must be strictly construed.-The statute conceraing forcible and unlawful detainer must be strictly construed. House v. Keiser, 8 Cal. 499. 2. The true construction of this Act, as to the mode of proceeding, would seem to be this: the case must be governed by the provisions of the Act, so far as they go, and as to other matters not embraced in the words of the Act, the general rules governing proceedings in these Courts will apply. People v. Harris, 9 Cal. 572. 3. When the action of forcible entry and detainer may be maintained. The action of forcible entry and detainer may be maintained in three cases: first, when the entry is forcible; second, when the entry is simply unlawful, and the detainer forcible; third, when the entry was lawful, and the holding over forcible. But in all cases, there must be something of personal violence, either threatened or actual. Dickinson et al. v. Maguire et al., 9 Cal. 46. 4. The action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff, and the unlawful or forcible ouster or detention by defendant-the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right Question of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee simple, title and present right of possession is shown to be in the defendant. McCauley v. Weller, 12 Cal. 500. 5. Where parties threaten to take forcible possession of property, and the complaint does not aver the insolvency of the defendants, and that there is no adequate remedy at law, an injunction will not be granted; where forcible possession is taken, forcible entry and detainer would be a speedy mode of regaining possession, and for other damages, the usual proceedings at law would suffice. Tomlinson v. Rubio, 16 Cal. 201. 6. Where in ejectment by B. & K., a writ of restitution was issued on judgment in favor of B., and under it K. was removed from the land by the proper officer, and W. put in possession, as agent of B., and then, about a month afterwards, W. leased the premises to H.: Held, that K. cannot maintain forcible entry and detainer against H., the lessee, on the ground that the act of the officer in removing and putting W. in possession was tortious, because not justified by the writ. Kennedy v. Hamer, 19 Cal. 375. 7. Possession.-In cases of this kind, the statute does not require an allegation of possession by the plaintiff. Cronise v. Carghill, 4 Cal. 120. such double rent shall be continued to be paid during all the time such tenant shall continue in possession, as aforesaid. SEC. 5. If any tenant, or any other person, who may have come into the possession of lands or tenements under or by collusion with such tenant, shall willfully hold over any lands or tenements, after the termination of such term, and after demand made, and one month's notice in writing, given in the manner hereinbefore prescribed, requiring the possession thereof by the person entitled thereto, such person holding over shall pay to the person so kept out of possession, or his representatives, at the rate of double the monthly value of the lands or tenements so detained, for so long a time as he shall so hold over or keep the person entitled out of possession; and shall also pay and remunerate all special damages whatever to which the person so kept out of possession may be subjected by reason of such holding over; and there shall be no relief in equity against any recovery had at law under this section. [SEC. 4, 1861, 1862.*] In all leases of lands and tenements, or any interests therein, from month to month, the landlord is hereby authorized, upon giving notice, in writing, at least fifteen days before the expiration of the month, to change the terms of the lease, to take effect at the expiration of said month. Said notice, when served upon the tenant, shall of itself operate, and be effectual to create and establish, as a part of the lease, the terms, covenants, and conditions specified in said notice; provided, that if the tenant shall surrender and yield up to the landlord the lands, tenements, or interests therein held by him, at or before the expiration of said month, he shall not be bound by the terms, covenants, or conditions set forth in said notice. (Approved April 25th, 1862.) * Statutes of 1862, 421; Statutes of 1861, 583. 8. The plaintiff in an action of forcible entry and detainer, must show an actual peaceable possession in himself at the time of the entry. Trent v. Stuart et al., 5 Cal. 113. 9. What is an actual, and what a constructive possession, in many cases, must be a question of fact for the jury. O'Callaghan v. Booth, 6 Cal. 63. 10. Where the plaintiff in an action of forcible entry for the front of a town lot, proved that he had a small house on the rear of it: Held, to be sufficient to warrant the jury in finding an actual possession of the whole lot. Id. 11. A mere scrambling or interrupted possession is not sufficient to maintain the action, but it must be actual, peaceable, and exclusive. House v. Keiser, 8 Cal. 499. 12. An action of forcible entry and detainer will not lie against a party claiming a right to land, who is not in the actual possession. Preston v. Kehoe, 10 Cal. 445. 13. To sustain forcible entry and detainer, plaintiff must have been in actual possession; and when the land is public land, not taken up under our Possessory Act, nor under the Federal laws, such actual possession can be shown only by actual inclosure, or its equivalent. Merely putting down stakes, or marking out a boundary line, is not sufficient. Preston v. Kehoe, 15 Cal. 315. 14. Where plaintiff had been in the peaceable and quiet possession and use of the premises through his agent and by his tenants, and the building being unrented, had locked the door and taken the key to his office, he was in the "actual possession" of the premises, within the statute of forcible entry and detainer. Minturn v. Burr, 16 Cal. 107. 15. The statute does not require actual occupancy, and "actual possession" consists as much of a present power and right of dominion as of an actual corporal presence in the house. Id. 16. In actions of forcible entry and detainer, the fact of possession, and not the right of possession, is what is to be determined. James Mitchell v. Davis, 20 Cal. 45. 17. Force, facts which constitute.-Where a party of four or five men enter a building occupied by another, in the night time, during the hours of sleep, and take possession, and avow their intention to keep possession, and actually do keep possession, it is sufficient evidence of force to maintain the action of forcible entry and detainer. Scarlett v. Lamarque et al., 5 Cal. 63. 18. Facts which might constitute a mere trespass upon property have never been held to sustain the action of forcible and unlawful detainer. Frazier et al. v. Hanlon, 5 Cal. 156. 19. Force, either actually applied or justly to be feared from the conduct of the defendant, is essential to the support of this action. Id. 20. To sustain an action of forcible entry, or forcible and unlawful detainer, actual force, threats of violence in the entry, or the just apprehension of violence to the person, must be shown to have existed, unless the detainer be riotous. Id. 21. Our statute of forcible entries and detainers provides a remedy for an unlawful entry, as well as a forcible entry, and the policy of it is doubtless to avoid nice distinctions as to what constitutes force in an entry upon lands. Moore et al. v. Goslin, 5 Cal. 266. 22. Where the Governor of the State, who is authorized, and it is made his duty by law, to take immediate possession of the State prison grounds, then in the possession of a lessee of the State, goes, in company with other officers of State, upon the grounds of the prison, and demands of the person in charge the keys of the prison, which being refused, the door of the room in which the keys were, was forced by order of the Governor, and the keys taken, and thus the possession of the prison and grounds taken by the Governor in the name and on behalf of the State: Held, that such acts amounted to a forcible entry on the part of the Governor, and he is personally liable therefor. Further, Held, that the acts of the Governor warranted the conclusion that any attempt on the part of the lessee to resume possession of the prison would be resisted by force. McCauley v. Weller, 12 Cal. 500. 23. Fraud or willful wrong.-In an unlawful entry, there must be some ingredient of fraud or willful wrong on the part of the party making the entry. Dickinson et al. v. Maguire et al., 9 Čal. 46. 24. Parties.-A subtenant can be made liable to the original lessor in an action for use and occupation, or for rent, only for the time during which the occu pancy of the premises by the subtenant continued. Pierce v. Minturn, 1 Cai. 470. 25. A tenant in common cannot maintain an action of forcible entry and detainer against his cotenant for holding over. The land must first be partitioned. Lik v. O'Donnell, 3 Cal. 59. 26. The remedy is a summary one, given by statute to protect the possession, and cannot be extended by implication to any other than the real occupants. Treat v. Stuart, 5 Cal. 113. 27. A landlord cannot sue in this form, in his own name, for an unlawful entry upon the possession of his tenant. Id. 28. This action can only be maintained by the person ousted; his grantee cannot maintain the action. House v. Keiser, 8 Cal. 499. 29. Where one man acts openly and avowedly for another in leasing or controliing his property, this is sufficient, as against third persons, to show that the property is that of the person recognized by the agent as owner; and the possession of the agent is the possession of the principal, who can maintain forcible and unlawful entry and detainer against such third persons, whether the agent had any written authority or not. Minturn v. Burr, 16 Cal. 107. 30. In an action of forcible entry, the persons by whose direction, agency and procurement the forcible entry is made, are liable in the action. Minturn v. BUT, 20 Cal. 48. 31. The action may be brought by the husband and wife, if the wife is a sole trader. Howard v. Valentine, 20 Cal. 282. 32. Complaint.-The objection to a complaint in forcible entry and detainer, that it does not aver "actual possession "-the word "possession" only being used-was a mere defect in pleading, which should have been taken advantage of below, where, if the objection be good, the complaint could have been amended; but it caunot be urged in the Supreme Court for the first time. Minturn v. BUT, 16 Cal. 107. 33. The statute does not require an allegation of psssession by the plaintif; this objection is at most only subject to demurrer. Cronise v. Caryhill, 4 Cal. 120. 34. The rule that a penal statute must be declared upon by the party seeking recovery under it, does not apply to pleadings in Justices' Courts. O'Callaghan v. Booth, 6 Cal. 63. 35. General denial sufficient.-Where in such case the complaint verified alleges such demand, and the answer verified, instead of specifically denying the allegation, denies generally "each and every allegation" in the complaint: Held, that this general denial put plaintiff on proof of demand, and of everything necessary to maintain the action. Sullivan v. Cary, 17 Cal. 80. 36. What may be tried in the action.-FIELD, J.-The validity of the lease under which the lessee held the premises cannot be tried in this action, nor can the lessee be deprived of the advantages resulting from the possession of the premises under the lease, by a forcible ouster under legislative enactment. McCauley v. Weller, 12 Cal. 500. 37. Description of the land.-In forcible entry and detainer, a descrip tion of the land, sufficiently definite to enable the administration of substantial justice, is all that is required in actions before Justices of the Peace. Hernandez v. Simon, 4 Cal. 182. 38. In an action of forcible entry and detainer, the complaint described the premises as "about ten rods square, situated within and comprising the northwesterly corner of that certain piece or parcel of land, bounded and described as follows, to wit:" (the complaint then goes on to give the metes and bounds of a tract containing one hundred and forty-six acres). "The said ten rods square being situated from twenty to fifty feet, more or less, southeasterly from the house of defendant, and near the gate aforesaid, and the junction of the San Bruno turnpike road with the road leading from the city of San Francisco to Hunter's Point." Said gate was where this last road passed through. The proof, among other things, showed this ten rods to be called the northeasterly instead of the northwesterly corner of the tract. The judgment for plaintiff followed the description in the complaint. Defendant appeals: Held, that the variance in the |