It appears from the complaint in this case, that the demanded premises were leased to the plaintiff in error, for the term of five years, ten and a half months ; and that long before the expiration of that period, the complaint was made by the defendants in error to the justice, and judgment rendered by him in favour of the complainants. It is stated in the complaint, as a ground for recovery, that the lessee had failed to fulfil certain covenants, and in consequence thereof, and in pursuance of the provisions contained in the lease, the complainants had entered upon the premises, and determined the lease. In consequence of this forfeiture, by the lessee, the complainants claimed to recover possession of the demised property, under the provisions of the statute, entitled “ An act prescribing a summary process to enable the owners of lands, houses and other buildings, to recover possession.” Slat. 307. tit. 53. c. 3.
1. The first enquiry is, whether upon the facts stated in the complaint, the lease had expired, and the lessee had holden over the term of the lease, within the meaning of that statute. The legislature undoubtedly intended to provide a short and summary proceeding, by which the owner of real estate leased, might regain possession from the tenant, after the expiration *538of the lease. For this purpose, they have thought proper to submit to the jury summoned before the justice, a few plain, simple questions of fact. They are to enquire whether the possessor is the lessee of the complainant, and holds over the term of the lease ; and whether notice has been given according to the provisions of the act, and the lessee holds possession after the expiration of the time therein specified. If the jury find these facts in favour of the complainant, the justice has power to render judgment in his favour for the possession, and to issue execution accordingly. The jury have no power to decide, conclusively, upon the title to the property. It is expressly provided in the statute, that all persons claiming title to the premises, shall, notwithstanding the act, or any proceedings under it, be entitled to their remedy at law, in the same manner, as if the act had not been passed.
Indeed, it has ever been the policy of our law, not to submit the title of real estate to the decision of a justice of the peace. An action of ejectment cannot be tried before him, let the matter in controversy be ever so small. If an action for trespass upon lands be brought before him, and the tenant pleads title in himself, the justice cannot proceed with the trial, but the cause is at once removed to a higher court. So in suits involving questions respecting a right of way, or the.use of water, appeals are allowed where they would not be, if those questions did not arise.
Although the jury are required to find whether the lessee holds over the term of the lease, yet it cannot be supposed, that the legislature intended that they should decide whether the lease had been determined in consequence of a forfeiture on the part of the lessee, and an entry on the part of the owner. Such enquiries often involve questions of the greatest nicety and difficulty in our law ; and it can hardly be supposed, that such a jury would be considered a proper tribunal for the determination of those questions, or that a justice of the peace would be a proper magistrate to instruct them respecting the law upon the subject. To confer upon him such power, would be a departure from the general policy of our law, and ought not to be presumed, unless clearly warranted, by the language of the statute. We discover nothing either in the object or language of the statute, that requires such a construction.
*539A similar construction appears to have been given to a statute of the state of New-liork authorizing summary proceedings to obtain the possession of lands. It is, among other things, provided in that act, that, a tenant may be removed, by certain ©{Beers, token he holds over the expiration of his term. The late chief justice of the supreme court of that state, in delivering the opinion of the court, said: “The legislature, I apprehend, did not not intend to create a tribunal to determine whether a tenant liad been guilty of a forfeiture. Tlie landlord cannot avail himself of the tenant’s violation of his agreement as to cutting wood, if that were an act which would work a forfeiture. This is not the expiration of the term referred to in the statute. It means expiration by lapse of time.” Oakley v. Schoonmaker, 15 Wend. 226.
By the expression, expiration of the lease, as used in our statute, is meant an expiration by effluxion of time, and not by reason of a forfeiture on the part of the tenant, in consequence of the non-performance of his covenants ; and by the expression holding over the term of the lease, is meant the holding beyond the period specified in the lease for its duration — a definite periotj of time.
As it appears upon the face of the complaint itself, that the term of the lease had not expired, within the meaning of the statute, it was insufficient to enable the justice to render judgment in favour of the complainants; and he erred in not so deciding.
2. The next enquiry is, whether upon the reversal of the judgment of the justice, the plaintiff in error is entitled to a writ restoring him to the possession.
By the rules of the common law, he is clearly entitled to such remedy ; and courts have been in the habit of awarding such writs. The practice is said to have grown out of an equitable construction of the statutes. This subject has recently been fully considered, by the court of King's Bench, in England. King v. Wilson, 3 Adol. & Ellis, 839. Lord Denman, C. J., in delivering the opinion of the court, said : “The defendant would gain nothing by our judgment, if we should merely declare the proceedings null; another step is necessary on the part of the court, in order that full justice may be done him. If we allow him to remain dispossessed of the premises had before, full effect will be given to an act. *540which we have pronounced wrongful. A writ of restitution is prayed to prevent this consequence. On looking into the authorities, we find, that the court has been in the habit of awarding that writ, when it has quashed the conviction for forcible entry; otherwise the whole proceeding would be nugatory.” The same practice prevails in Massachusetts and in Neiv-York. Commonwealth v. Bigelow, 3 Pick. 31.
If therefore, the tenant has been dispossessed of his property, both justice and authority require, that he be restored.
It has been farther urged, that a motion for restitution, is one addressed to the discretion of the court, and ought not to be granted, unless necessary for the promotion of equity and justice ; and that as the jury in this case have found a forfeiture of the lease, the tenant ought not to be restored to the possession. Which of the parties is justly entitled to the possession, is a question, which cannot, with propriety, be determined upon a writ of error. Neither can the wrongful proceedings before the justice, furnish legitimate evidence of the merits of the controversy.
This subject was also fully considered in the case just cited from the English reports. Lord Denman, C. J., there remarked : “ It has been said, that the court will not issue the writ, unless the party unlawfully dispossessed should appear to have title to the premises — a most inconvenient enquiry upon affidavits, and a course full of danger to the public peace, as protecting the execution of an unlawful sentence. But in Bex v. Jones, 1 Str a. 474., the court declared, even where the conviction was quashed for a merely technical error, and the lease of the dispossessed persons had expired during the litigation, that they had no discretionary power in the case, but were bound to award restitution.”
It is not necessary, in this case, to enquire what ought to be done, had the term of the lease expired before the reversal; for it appears from the complaint, that the term has not yet expired.
But it is said, the practice in Connecticut has been different ; and we are referred to the decisions of the superior court. Bird, v. Bird, 2 Root, 411. Bull v. Olcott, 2 Root, 472. These decisions are certainly opposed to what may now be considered the well established rules of the common law; and, we cannot think, that under them such a practice has be*541come so established, as to prevent our doing justice to the parties.
Besides, another statute provides, that upon the reversal of a judgment of an inferior Court, “ the plaintiff shall recover all that he has been damnified thereby.” Slat. 54. tit. 2. s. 69. The plaintiff in error in this case has been dispossessed of the demised premises, by means of the erroneous judgment of the justice. How then can he recover all that he has been dam-nified thereby, unless he recover back the possession of which he has been deprived, by means of that judgment? If without any such statutory provision, courts have been in the habit of awarding such writs, it would seem, that under it, there could be little doubt respecting either their power or their duty.
Our advice to the superior court, therefore, is, that the judgment of the justice ought to be reversed, and a writ of restitution awarded.
In this opinion the other Judges concurred.Judgment to be reversed ; and a writ of restitution awarded.