Ladd

By the Court,

This is an action instituted by plain *20 tiff to recover possession of certain lots of land, from the quiet and peaceable possession of which, it is alleged, he was ousted by the defendants, acting under and by authority of an order issued by the First Alcalde.

The petition alleges that on and before the fourth day of February, plaintiff was in lawful, quiet and peaceable possession of the lots described, and that on said day defendants and others, claiming to act under an order of the first alcalde, entered forcibly on the premises and ousted him from such possession; and he prays to be reinstated therein.

The answer sets up, that defendants were and are the legal owners of said lots, and that previous to the entering of plaintiff thereon, which he did with force and violence, they were themselves in possession. Plaintiff filed In the court below exceptions to the answer, in the nature of a demurrer, on the ground that it neither denied, nor confessed and avoided, any of the material allegations of the petition. The court overruled the exceptions, and rendered j udgment in favor of defendants ; from which ruling and judgment plaintiff appeals.

The answer…

(dissenting.) I concur with the majority in that part of their opinion which declares the proceedings before the al-calde void; also in that part which refers to the issue that should have been formed and tried in the court below; but I cannot assent to those parts of the opinion which represent that the respondents, by their answer, admitted the quiet and peaceable possession of appellant as averred in his petition. The appellant, on his part, represents that on a day mentioned he was in the quiet and peaceable possession of the premises in controversy, which, if true, or admitted, would entitle him to recover, but the respondents deny the averment of this appellant, and put the same iu issue, not in the technical form of making such an issue, but in substance, by declaring, “that they were in “ the quiet and peaceable possession of the same until the said “ Ladd with force and violence attempted to take possession “ thereofand that he entered upon said real estate as a tres *23 passer; that the agent of respondents, at the time, represented to appellant that the property belonged to respondents, and was in their possession. The question is not what was the remedy of respondents,…