#### Lansing W. Wells, Plaintiff in Error, v. Patrick Hogan, Defendant in Error.

ERROR TO JO DAVIESS.

The proceedings under the statute for forcible entry and detainer, being summary, and contrary to the course of the common law, must strictly conform to the requisitions of the statute.

A complaint made in writing before two justices of the peace, that the complainant “is entitled to the possession of a house and lot in the town of-, wherein one Wells lives, and that said Wells refuses to give possession of said house and lot, though he has been notified to do so in writing," is insufficient.

In order to give the justices jurisdiction, the plaintiff ought to have stated in his complaint that the defendant willfully, and without force, held over the premises after the time had expired for which they were leased to him; or in other words, the relation of landlord and tenant should be shown to exist, and a holding-over, after a demand made in writing by the landlord.

No particular form is required in the proceedings of a court, to render them an order, or judgment; it is sufficient if it is final, and the party may be injured.

Opinion of the Court by

Justice Lockwood.*

This was an action for forcible detainer, originally commenced by Hogan before two justices of the peace of Jo Daviess county. Hogan states in his complaint that “ he is entitled to the possession of a house and lot in the town of Galena, wherein one Wells lives, and that said Wells refuses to give possession of said house and lot, though he has been notified so to do in writing,” which complaint was sworn to, and on the trial before the justices, a verdict was found against the defendant below. To reverse this decision, an appeal was taken to the circuit court of Jo Daviess county, and upon the trial in that court, a verdict was found against Wells, that he was “guilty *338of a forcible detainer.” Upon giving this verdict, the defendant prayed time to file a bill of exceptions, which was granted. The record then states, “'It is ordered and adjudged, that unless the defendant enter into bond as the law directs, within fifteen days, in the penal sum of seven hundred dollars, with James Jones as his security, that then a writ of restitution be awarded, and that the plaintiff have execution for his costs herein paid out and expended.” To reverse this order or judgment, Wells has brought this case into this court by writ of error, and has assigned a number of errors. It will, however, be unnecessary to consider any but the following, to wit: The complaint made before the justices of the peace was insufficient. The proceedings under the statute for forcible entry and detainer being summary, and contrary to the course of the common law, must strictly conform to the requisitions of the statute. The complaint is the foundation of the action, and must contain sufficient matter to give the justices jurisdiction, or the whole of the proceedings will be coram nonjudice, and consequently, void. In order to justify the justices of the peace in taking jurisdiction of this case, the plaintiff below ought to have stated in his complaint, that the defendant below willfully, and without force, held over the premises after the determination of tlf6 time for which such premises were let to him, or the person under whom he claims, after demand made in writing for possession thereof, by the person entitled to such possession; or in other words, the relation of landlord and tenant should be shown to exist, and a holding over after demand made in writing for a redelivery of the premises to the landlord.

The complaint exhibited to the magistrate, states that the plaintiff below “ is entitled to the possession of a house and lot where defendant lives,” without showing that the defendant was a tenant, either to himself, or to any person under whom he claims. This was not sufficient to give the justices jurisdiction of the case. It is, however, objected on the part of the defendant in error, “ that no judgment has been given in the circuit court, and consequently, that a writ of error will not lie.” No particular form is required in the proceedings of a court, to render their order a judgment. It is sufficient if it is final, and the party may be injured. In this case the order of the court is absolute, that a writ of restitution should issue, unless the defendant below executed a bond in a large penalty, with security, within fifteen days. If the party failed to execute the bond, the writ of restitution was to issue, to obtain which writ was the design of commencing the suit. It does not appear that the bond was executed, and consequently, *339the defendant was exposed to have the writ of restitution issued against him, and thereby be expelled from the premises in a case where the justices had no jurisdiction. A writ of error was, under the circumstances, the only means left, after the fifteen days had expired, to prevent the defendant’s being illegally turned out of possession of premises, which for any thing that appears, actually belonged to him.

Cavarly, for plaintiff in error.

Ford and Strode, for defendant in error.

The judgment below must be reversed with costs, (a), (1)

Judgment reversed.

*

Chief Justice Wilson did not sit in this cause.

(a)

Vide Clark v. Roberts, ante, p. 285.

(1)

There are four cases in which a forcible entry and detainer may be maintained in this state: 1. Where there has been a wrongful or illegal entry upon the possession of another; 2. Where there has been a forcible entry upon such possession ; 3. Where any person may be settled upon the public lands within this state, when the same have not been sold by the general government; and 4. Where there has been a wrongful holding over by a tenant after the expiration of the time for which the premises may have been let to him. In the first three classes, before the action can be maintained, there must be an illegal and forcible entry upon the actual, or, as in the case of a settlement upon the public lands, constructive possession of another. In either of these cases, it is not sufficient to charge in the complaint that the complainant’s right to the possession only, had been invaded by the forcible or illegal entry. Whitaker et al. v. Gautier, 3 Gilm., 443.

A complaint for a forcible entry and detainer should clearly show the foundation of the right, which is sought to be enforced; and that the wrongful or illegal entry was made upon the actual or constructive possession of the plaintiff; or the relation of landlord and tenant, and a wrongful holding over must be shown. Id.

When the relation of parties is that of vendor and vendee, a proceeding for forcible detainer will not be sustained. Dixon v. Haley, 16 Ill., 145.

To constitute forcible entry and detainer, violence is not essential. If the entry is made against the will of another, the entry is forcible in legal contemplation. Croff v. Ballinger, 18 Ill., 200.

Title is immaterial in a proceeding for forcible entry and detainer, except to show the extent of the possession. Deeds may be read in evidence to prove boundaries, or extent of possession. Brooks v. Bryan, 18 Ill., 539.

See note to Bloom v. Goodner, ante, p. 63.

Since preparing the foregoing notes the following law has been passed by our Legislature. “ Chapter 43 of the Revised Statutes of 1845, (Forcible Entry and Detainer,) shall be extended to all cases between vendor and vendee, where the latter has obtained the possession of lands under a contract, by parol or in writing, and before obtaining a deed of conveyance of the same, fails or refuses to comply with such contract to purchase, and to all cases where lands have been sold, under a judgment or decree of court in this State, and the party to such judgment or decree, after the expiration of the time of redemption refuses, after demand in writing by the purchaser under the same, to surrender possession thereof: Provided, that in cases of vendor and vendee, the latter shall be entitled to cultivate and gather the crop growing on the premises at the commencement of the suit, and the right of ingress and egress for that purpose, and for the purpose of removing saidjcrop after its maturity.” Acts of 1861, p. 176,