O'Callaghan

Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

This was an action of “ forcible entry and unlawful detainer,” instituted before a justice of the peace, and afterwards carried by appeal to the County Court. On the trial before the justice a judgment was rendered for restitution of the premises and $285 damages. After many delays, etc., the County Court rendered judgment for restitution and $12,150 damages.

The first error assigned is, that the plaintiff’s possession of the property in dispute was insufficient to maintain this action.

It would be extremely difficult to define the exact possession which the statute was designed to protect, and the muniments of title requisite to establish a constructive possession. The plaintiff in error claims that there should be an actual possessio p>edis, and that the rule that possession of a part of a tract of land, marked by distinct natural or artificial boundaries, with a claim of title to the whole, draws after it the constructive possession of such lot or tract of land, does not apply for the purpose of an action like the present. That the statute was passed to prevent the public peace from being disturbed by the illegal and…