delivered the opinion of the court.

The complaint in this case follows the precise language of the sixteenth section of the act concerning forcible entry and detainer. It charges that the plaintiffs were lawfully possessed of the premises described, and that the defendants *20unlawfully entered into and detained tbe same, and were thereby guilty of a forcible entry and detainer. The sixteenth section declares that the only proof necessary to establish a forcible entry and detainer is, that the plaintiff was lawfully possessed of the premises, and that the defendant unlawfully entered and detained the same. The terms “ lawfully” and “ unlawfully” are not the most appropriate to convey the ideas intended, for the action does not contemplate any investigation into the merits of the title on either side. But as these terms are used in the statute, it would seem reasonable that their use in the complaint should not vitiate it. In truth, as the complaint in this case fully described the land and the person by whom the alleged illegal entry was made, and the time when it was done, and concluded with a charge against the defendants of forcible entry and detainer, it is not perceived how any one could be misled as to its purport. It appears to us to be substantially correct under the sixth section'of the act.

The instruction given by the court in this case is obviously based upon the hypothesis that the action was not for forcible entry and detainer, but for an unlawful detainer; and the instruction amounted to a direction that the plaintiffs could not recover on the evidence ; for there was no proof of any demand, and the whole testimony showed that the case was one of forcible entry and detainer, or that the plaintiffs had no case at all.

The real question in the case was, whether the possession was delivered up by French, plaintiff’s agent, in consequence of threats or violence on the part of defendants, or was voluntarily surrendered. This fact, concerning which the evidence might have authorized an inference either way, was not passed upon nor submitted to the jury at all, as the instruction put the case entirely upon the question of notice, a matter entirely foreign to the case, treating it as an action for forcible entry and detainer.