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 forcible entries upon land which was held by occupancy and possession, and cannot be extended to cases where the party’s possession is constructive, or his right to possession arises from implication of law. That, in such cases, he should be turned over to his remedy by ejectment.
What is actual, and what is constructive possession, in many cases, must be a question of fact for the jury. The possession and cultivation of one acre of land, without acts of ownership and dominion, would not necessarily draw after it the possession of 640 acres uninclosed and unimproved; neither should the actual possession of one half a town lot be so construed as to limit the party’s possession to the part so occupied, without regard to the acts of ownership exercised over the remainder.
It would be a great hardship to require a party, in every instance, to enclose his lands by a substantial fence; such enclosure would be evidence of possession, but the absence of it would not be conclusive as against other acts of possession.
An examination of the evidence in this case shows that the jury might very properly have found an actual possession of the premises in dispute, in the plaintiff, at the time of the entry, and we will not disturb this conclusion of fact. •
Again, it is contended that the Court erred in altering the instructions asked for by the defendant. It is not necessary to ¡Drove actual *66force to maintain this action, but threats or menaces of a hostile character, showing a determination to resort to violence if resistance is offered, are all that is necessary. It would certainly be a strange rule if a party were compelled to procure an assault to be made upon himself at the time of his ouster, to entitle him to maintain his action for a recovery of possession.
The law does not require a vain thing to be done, and in case of an entry, made where the parties showed, by threats and immoderate language, their intention to take and hold the property, no actual collision would be required. The instructions of the Court were correct on this point, and followed the decision of this Court in the case of Scarlett v. Lamarque, et al.
The next assignment of error is, that the plaintiff has not declared upon the statute.
Where an offence is created by statute, and a penalty inflicted, it is necessary that the party, seeking a recovery, should, in general, refer to such statute, but we do not understand this rule to apply to pleadings in Justices’ Courts, which are usually without regard to form. This objection involves also the power of the County Court to treble the damages by way of penalty, which, it is contended, does not exist. The statute provides that these cases shall be tried de novo in the County Court, but does not provide, in express terms, that the County Court shall treble the damages, so that the power must, if it exists at all, result, by necessary implication, from the power to try de novo ; which I understand to be, with like effect, and in the same manner, as though the cause was, for the first time, brought to trial; which would enable the County Judge to do all that the Justice could have done in the premises.
If the plaintiff had declared for a given sum, then the point would have been well taken, and the appellate Court could not have given judgment for more*than the amount sued for, without amending the pleadings; but as the declaration is for the monthly rents, etc., his right to damages cannot be defeated by the defendants’ delay in bringing this case to trial.
This view is strengthened by the character of the bond required in case of appeal. If the County Judge cannot treble the damages, it results that one of the objects of the statute, which was the punishment of the party for a breach of the peace or unlawful entry, would be defeated in every case where the damages assessed by the Justice were sufficiently large to justify an appeal.
The last assignment of error is, that Justices’ Courts have no jurisdiction in cases of “forcible entry and unlawful detainer;” that they are special cases, and belong to the County Court, by the express provisions of the Constitution.
The ninth section of the sixth Article of the Constitution provides, that “ the County Courts shall have such jurisdiction, in cases arising in Justices’ Courts and in special cases as the Legislature may prescribe, but shall have no original civil jurisdiction except in such special cases.” *67By no fair rule of construction can this section be held to confer exclusive original jurisdiction in all special cases, upon the County Courts, but only jurisdiction in such cases as the Legislature may permit to the County Courts.
It follows, from the previous decisions of the Court, that where the Constitution does not limit the jurisdiction of the various Courts of this State to a particular class of cases or subject matter, and jurisdiction in certain cases is not conferred exclusively upon any particular Court, the same may be disposed of among the various Courts as the Legislature may think proper.
Judgment affirmed, with costs.