he entered the premises as tenant to the plaintiff, or to those under whom he claims, he shall not be adjudged a tenant within the meaning of this act, unless the plaintiff shall satifactorily prove, that the defendant obtained the possession as tenant to the plaintiff, or to the person, or persons, under whom the plaintiff holds, and that the tenant holds over. (r) What deemed a forcible entry SEC. 17. The forcible entry intended by this act (s) is, and shall be, any entry with or without multitude of people, against the will, or detainer. or without the assent, of the person or persons who, at the time of such entry, have the possession in fact of the premises into which such entry may be made; (t) which possession in fact, when had, terwards.-Bruebaker v. Poague, &c. 1 Mon. the same proceeding that the tenant was subject 128; Reel v. Rawson, 2 Litt. 191. (r) A tenaut disclaiming to hold under his landlord, is not entitled to notice to quit, but is liable instantly to a warrant of forcible detainer. -Bates v. Austin, 2 Mar. 270; Bruebaker v. Poague, &c. 1 Mon. 128. 2. A lease subscribed by landlord and tenant, need not, upon a warrant of forcible detainer, be proved as to the landlord.-Gray v. Nesbet, 2 Mar. 35. 3. When a tenant obtains the possession under one man, and afterwards takes a lease from auother and holds over, he is not liable to a warrant of forcible detainer at the instance of the latter.-Helm v. Slader, 1 Mar. 320. So when he enters without force and not as tenant, and afterwards takes a lease.--Mattingly v. Lancaster, 2 Mar. 30; Nelson v. Cox, 2 Mar. 150. 4. A person procuring possession of lands under a contract of purchase, is no tenant, so as to be subject to a warrant of forcible detainer.Hay's Heirs v. Connelly's Heirs, 1 Mar. 393. 5. When a tenant enters under an agreement to occupy no longer, that the use of the place will repay him for the value of repairs made; and attempts to hold longer, a warrant of forcible detainer may be maintained against him.Wheatley v. Price, 3 J. J. Mar. 168. 6. Wherever the person in possession entered as tenant to the plaintiff, or those under whom be claims, a writ of forcible detainer may be sustained for holding over; however void the lease might be, between the lessor and the lessee, with regard to the obligations of the former to let the latter remain in possession.-Hayne's v. Adams, 3 Mar. 150; Bruebaker v. Poague, 1 Mon. 127. 7. Where the widow and heirs are left in possession at the death of the tenant, or the tenant has leased to others, the parties are subject to to, for holding over; although the possession was not inmediately received from the first lessor.Bruebaker v. Poague, &c. 1 Mon. 128. 8. A. sells and conveys land on which he lives to B., and without putting B. into possession, or removing from the land himself, takes a lease of it from B. In such case, A., though holding over after his lease has expired, cannot be removed by writ of forcible detainer-Brewer v. Peed, 6 J. J. Mar. 494. 9. Where a person enters in his own right, and without force, and afterwards takes a lease, he cannot, after the expiration of the lease, be removed by a warrant of forcible detainer.Morris v. Bowles, 1 Dana, 97. (s) The force intended by the statute, is an entry or a detainer against the will of the indivi dual in possession.-Swartzwelder v. U. S. Bank, 1 J. J. Mar. 46. (t) There may be such a possession in fact, of unimproved and unenclosed land, as will enable the possessor to maintain the writ of forci ble entry and detainer against those who invade it.-Wall v. Nelson, 3 Litt. 395. See also Chiles, &c. v. Stephens, 3 Mar. 347; Brumfield v. Reynolds, 4 Bibb, 388. 2. The entry of one within the lines or fencing of another, without his assent, constitutes a forcible entry.-Henry v. Clark, 4 Bibb, 426. 3. One who was neither in possession of, nor had title to land at the time when an entry was made on it, cannot in consequence of a purchase afterwards made, maintain a warrant for a forcible entry. The injury in such case to the purchaser, consists in the detention; and to justify an award of restitution, the warrant must allege a forcible detainer.-Lewis v. Stith, 2 Litt. 295. 4. As to the effect of possession by a mere agent, see the case of Chiles, &c. v. Stephens, 3 Mar. 347, Other statutes repealed. and during the time of its continuance, is and shall be construed to extend the limits of the premises so possessed. (u) SEC. 18. All acts and parts of acts, which are within the purview of this act, shall be, and are hereby repealed. SEC. 19. And be it further enacted, That the justices of the Justice's fees. peace attending for taking an inquisition of forcible entry or detainer, as aforesaid, shall be entitled to have, and receive from the party complaining, one dollar for every day he shall necessarily attend for taking the same, which shall be taxed in the bill of costs, in cases where the plaintiff shall succeed. SEC. 20. And be it further enacted, That the sheriff, or coroner, Sheriff's fees. who shall summon and attend the jury in any case of forcible entry, or forcible detainer, is, and shall be allowed, and paid by the plaintiff, or plaintiffs, the sum of four dollars in full for the services aforesaid; and for summoning witnesses and other services, to be by him rendered under this act, he shall be allowed the same fees 3. The entry of the elder patentee, before his entry is tolled, without the consent of the junior patentee in possession, will subject him to a warrant of forcible entry; but it will give him possession of the whole tract within his boundary, justify him in trespass, and prevent the statute of limitations from running against him; and should he be permitted to remain two years, no warrant of forcible entry will lie against him; and he will not be guilty of any forcible entry, by extending his enclosure, &c.-Smith, &c. v. Morrow, 5 Litt. 210. 6. Although a person was not in fact upon the land at the time of the entry complained of, yet his having left property in the house and locked it up, and contracted with a tenant to live on the land, will be sufficient evidence of possession to enable him to maintain the writ. Young, &c. v. Ringo, 1 Litt. 226. 7. The actual possession, and not the right of entry, is the question in issue, in cases of forcible entry and detainer; and if a disseisor is turned out by force, he will be entitled to restitution, even against the rightful owner.--The same doctrine applies to the case of landlord and tenant, and if, after the expiration of the lease, the landlord expel the tenant by force, the tenant will be entitled to restitution.--Chiles, &c. v. Stephens, 3 Mar. 345. 8. Where the lessee enters into part of the premises, whilst another, against whom the lessor has judgment, has possession of the other part, the execution of the writ of possession enures to the benefit of the lessee, and though the lessor let such part to another, (as by stipu lations with lessee he might do,) yet if this lessee do not keep it, the possession will be with the first lessee, and he may maintain forcible entry against one entering upon the land.-Vanhorne & Wife v. Tilley, 1 Mon. 50. 9. None but those who are in the actual possession, when a forcible entry is made, can maintain the warrant of forcible entry under the statute.--Prewitt v. Durham's Ex'rs. 5 Mon. 18. 10. Quere: Whether a person who, holding a judgment in ejectment, enters without a habere facias possessionem, will be adjudged guilty of a forcible entry and detainer?-Bowman, &c. v. Violet, &c. 4 Mon. 357. See also Chiles T. Stephens, 1 Mar. 333. If a person enters forcibly, and is afterwards removed by a writ of forcible entry and detainer, he will, nevertheless by such entry, have broken the claim of adverse possession and thereby avoided the statute of limitations running against him.-Ibid. 11. When a tenant is disseized, the landlord cannot maintain the writ of forcible entry and detainer. The proceedings should be in the name of the tenant.-Trabue v. Talbot, 6 J. J. Mar. 602; Poague v. McKee, 3 Mar. 128. (u) Deeds may be introduced to show boundary and extent of possession, but not to show a right of possession.-Beauchamp v. Morris, 4 Bibb, 312; Carpenter v. Shepherd, Ibid, 501. 2. The actual residence upon one part of a tract, claiming the whole, is a possession of the unenclosed part within the act against forcible entries.--Vanhorne et ux. v. Tilley, 1 Mon. 51. as is now allowed by law for similar services in the circuit or coun ty courts; and the witnesses who sha!! attend, and give evidence Witnesses' fees on the trial of any case of force as aforesaid, shall be, and are allowed fifty cents each, for his or her daily attendance, to be paid by the party requiring such attendance, and to be taxed as costs where the nature of the case requires, and will justify it, 1833. IN FORCE FROM ITS PASSAGE. AN ACT to amend the laws regulating proceedings in cases of Ejectments, and [For the power of the circuit court to permit the traverse bond to be amended, see title APPEALS AND WRITS OF ERROR, p. 137, ante.] TITLE 84. FRAUDS. not to be bro't verbal upon promises. 1796. ÎN FORCE FROM FIRST OF JANUARY, 1797. AN ACT to prevent Frauds and Perjuries: Approved December 14, 1796-1 SEC. 1. Be it enacted by the General Assembly, That no Certain actions action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer any debt or damages out of his own estate; or whereby to charge the defendant, upon any special promise, to answer for the debt, default or miscarriage of another person; (a) or to charge any person upon any agreement made upon consideration of marriage, (b) or upon (a) A credit is given to P. for meat, drink, &c. of C., at the request and procurement of P. the statute of frauds and perjuries does not apply to the demand.-Porter v. Langhorne, 2 Bibb, 63. 2. To enforce an agreement (with regard to the debt, duty, or default of another) beyoud, or contrary to the terms which are expressed in writing, on the ground of mistake, would be repugnant to the express provisions of the statute of frauds.-Floyd & Chambers v. Harrison, 4 Bibb, 77. 3. Where goods or other things are delivered to one person on the credit and request of another, the assumpsit of the person on whose credit the articles were delivered, is direct and not collateral.Stapp, &c. v. Anderson's Ex'r. 1 Mar. 539. 4. A. owed B. a sum of money, and C. owed A. the same amount; a promise by C. to pay B. at the instance of A., is not a collateral undertaking to pay the debt of another, and is not within the statute of frauds and perjuries, and may be enforced, though not in writing.-Haydon v. Christopher, 1 J. J. Mar. 382. 5. It is essential to a case, to be included by the statute of frauds and perjuries, that the person for whom the undertaking is made, should remain also bound. Where he is discharged, or never was credited, the promise is valid.-Armstrong v. Flora, 3 Mon. 44. 6. The statute does not prevent two binding themselves jointly by parol, in a contract for the benefit of both.-But an agreement of one en tered into as security for the original party who remains bound, is declared void.-Wagner v. Bells, 4 Mon. 9. If the credit is given to the defendant, though the contract is for the benefit of another not bound, the case is not within the statute.—Otherwise, if both undertake by parol, in a contract for the benefit of one only; for then the surety is not bound.-Ibid. Valuable consideration for the assumpsit of another, does not take the case out of the statute.-Ibid. (b) The statute of frauds and perjuries does not apply to agreements to marry. It was not designed to require promises to marry to be in writing.-Withers v. Richardson, Mon. 94. 2. Where a contract to provide for former children, entered into before second marriage, be actually executed by distribution of the property according to its stipulations, and such children have had five years' possession, the court will not disturb it in favour of a creditor of the second any contract for the sale of lands, tements or hereditaments; (c) husband, though the original marriage contract conferred on them no title.-Beard v. Griggs, 1 J. J. Mar. 28. (c) A parol contract for lands alleged to have been made by the ancestor, will not be specifically enforced against infants, although their guardian do not insist upon the statute against frauds and perjuries.—Grant's Heirs v. Craigmiles, 1 Bibb, 209. 2. An agreement between two holders of entries, to abide by a dividing line, is within the statute of frauds and perjuries, and must be proved by written evidence.-Robinson, &c. v. Corn, 2 Bibb, 125; Smith v. Smith, 4 Bibb, 82. 3. An agreement between H. and L. who were contending for slaves seized under execution as the property of B., that L. should have the benefit of a mortgage on the slaves held by II. and pay him his demand in lands, is within the statute of frauds and perjuries.-Helm v. Logan's Heirs, 4 Bibb, 78. 4. An agreement between B. and P. that the latter should make a purchase of land, if possible, of C., for the joint benefit of both; P. made the purchase, and thereupon it was agreed that B. should advance one half the purchase money, and be equally interested in the land-this is within the statute of frauds, &c. A writing between B., P. and others, stating B. and P. to be assignees of C. without stating of what, or the terms or the extent of their interest, does not take the case out of the statute.-Parker's Heirs Bodley, 4 Bibb, 102. V. 5. The statute of frauds can only be an available defence to decreeing a specific execution of a verbal contract for lands, where the contract is denied, or the statute is pleaded.-Talbot v. . Bowen, 1 Mar. 437. 6. Money paid on a verbal contract for the sale of land may be recovered back by an action for money had and received.-Hunt v. Sanders, 1 Mar. 553. 7. The vendee of land by parol contract, should be paid for his improvements bona fide made before the vendor denies the right of the vendee, and from that time the vendee is subject to pay rents and not before.-Fox's Heirs v. Longly, Mar. 389. If the vendee has paid any money for the land, it should be refunded with interest from the assertion of the vendor's right only-Lid. 8. An action will not lie for failing to convey land verbally sold, though there has been part payment. A payment in property being inade under such contract, trover, and not assumpsit, is the proper remedy to recover it back.-Keith v. Patton, 1 Mar. 24. 9. If a bond for the conveyance of land is lodged with a surety of the obligee, as an indemnity, the surety may hold the bond until he is in demnified; but he acquires no lien on the land, and cannot have the land subjected to sale for his security, unless there is a writing, &c. authorizing the court so to act.--Porter's Heirs v. Howard, 1 Mar. 358. 10. An entry of record by the auctioneer of a sale of lots at auction, by the trustees of a town, is within the statute, and the sale cannot be enforced; the memorandum must be signed by the seller or some person authorized by him.-Thomas' Ex'rs. v. Trustees of Harrodsburg, 3 Mar. 298; Martin v. McFadin, 4 Litt. 242. 11. Parol evidence of an agreement that the dividing line between two tracts of land, should thereafter occupy a different position from what had been theretofore considered its true position, is inadmissible in an ejectment between the proprietors of the two tracts.-Smith v. Dudley, 1 Litt. 68. 12. Where the contract for the sale of land is executory, it is necessary to state the price in writing, as well as the land sold; but where it is executed on the part of the vendee, and that fact is evinced by written evidence, it will not be necessary to state the precise price. There is in such case nothing to be ascertained by parol proof for the purpose of enforcing such a contract.--Fugate v. Hansford's Ex'rs. 3 Litt. 262. 13. A parol exchange, or a parol submission to arbitrators, of a controversy respecting the title to lands, is within the statute.-Starke's Heirs v. Cannady, 3 Litt. 402. 14. Where an agent, verbally employed to purchase land for his principal, does so with the money of the principal, but makes the contract in his own name, a trust will result to the principal by implication, which is not within the statute of frauds, &c. for the statute only forbids the enforcement of a trust, or equity created by contract, and not such as results from the nature of the transaction by implication of law.-Ibid. See also Fischli v. Deemarsley, 3 Mar. 24. 15. The statute of frauds, &c. has no application to a case where, in pursuance of a verbal contract for the sale of land, a deed was executed and delivered, but kept in the possession of the party selling, and afterwards destroyed by him.—Hunter v. Simrall, &c. 5 Litt. 62. 16. A verbal agreement to convey part of an interference, in consideration of a relinquish |