delivered the opinion of the Court:
The first objection is, that the proper names of the school directors constituting the corporation, were originally inserted in the record, and afterwards stricken out by the order of the court. We have so often decided that it was proper to strike out the individual names of the corporators as surplusage, in- cases like this, that it would now be improper to add more than that the court decided properly.
It is next objected, that these school directors, who were the corporators, were improperly permitted to testify as witnesses on the trial. Even if these directors were not competent witnesses, which is a question not before us, this record does not show that they testified to any material fact, or even that they were sworn and testified at all, upon the trial. It does appear that they were offered as witnesses by the plaintiff, and that they were objected to by the defendant, which objection was overruled by the court, and there the record stop's. Eor aught that appears, the plaintiff withdrew them and never had them sworn and never examined them, nor does it appear that they testified to anything material against the defendant, of which he can complain. Objections of this kind must be based upon improper testimony, admitted to the prejudice of the party complaining, for, until this is shown, we cannot see that he has been injured. Miller v. Houck, 1 Scam. 501; Parsons v. Dunaway, 4 Scam. 194.
We now come to the instruction which the court refused to give. It is this: “ That if the defendant was, at the time of the entry complained of, the owner of the land on which the school house in controversy was situate, and was then entitled to the immediate legal possession of the same, that he would have, and did have, the same legal right to the possession of the building.”
It was to prevent parties from taking the law into their own hands, and righting themselves in just such cases as is here supposed, that our statute of forcible entry and detainer was passed. The person who has title and right of entry, where another party is in peaceable possession, must resort to his action of ejectment, where he can show his title; and if he ousts the other with his own hand, the law compels him to restore the possession. Indeed, in this form of action, we have often decided the title to the premises cannot be drawn in question. The instruction was properly refused.
The judgment is affirmed.
Pidgmemt affirmed.