The Opinion of the Court was delivered by
A new trial should have been granted. The evidence did not make out a case of forcible entry and detainer. There may have been a wrongful entry on the constructive possession of Crummer, but there was not such a continuing in possession as to constitute a detainer. The possession was disturbed, but not withheld. There was not an actual dispossession. The acts complained of were only trespasses, for which the law provides a different but an adequate remedy. To maintain an action for a forcible entry and detainer under our statute, two things must concur : first, the possession must be illegally or forcibly taken, which constitutes the entry .$ and second, the possession so taken must'be withheld, which constitutes the detainer. At Common Law the rule was different. The party was liable to indictment, and might be convicted of either a forcible entry, or a forcible detainer, each being considered a distinct offence. Not so under our statute. The proceeding is purely a civil remedy, the sole object of which is to regain the possession that has been invaded. Damages are not recoverable in this action, but the only judgment for the plaintiff is, that he have restitution of the premises' of which he has been unjustly deprived. If there was not a withholding of the possession, there is nothing to be restored, and' the proceeding is wholly unnecessary ; the party can take the possession without the aid of legal process. To. permit him under such circumstances to bring this action and obtain a judgment of restitution, would be a useless ceremony. Some right is to be ascertained by the judgment of a Court and enforced by its process.
The judgment of the County Court is reversed with costs, and the cause is remanded for further proceedings.
Judgment reversed.