Flaherty v. Andrews

The question of fact raised by the parties on the trial hereof was simply, whether the defendant had forcibly ejected the plaintiff from the premises in question. The proof fully sustains the finding of the justice on this subject.

If the defendant relied upon a previous surrender of the premises by the plaintiff, he should have set up such previous surrender in his answer. If the question of title had been raised thereby, the jurisdiction of the court would have been defeated.

But if the defendant relied upon proving that the alleged forcible removal was itself voluntary on the part of the plaintiff, and in pursuance of his agreement to surrender, that was a question upon which, under the conflicting evidence, we must regard the finding of the justice as conclusive.

Ho surrender short of an actual delwery of the premises to the landlord, is sufficient to warrant such forcible ejection. *530If by such surrender, or by reason of the non-payment of rent, or for other reason, the term of the letting has terminated, or the tenancy has ceased, the landlord has his summary remedy to obtain possession, and he should have resorted to that, instead of an arbitrary removal of the tenant’s goods and family, by force, without process.

The judgment should be affirmed, with costs.