English & English v. Brown. and by force of the statute, &c. the said English, in his lifetime, and the defendant, as administrator, since the death of the said Walter, became liable to pay the plaintiff the aforesaid sum, with interest thereon, yet neither the said Walter in his lifetime, or the said defendant since his death, have paid, &c. to his damage, &c. The defendant failing to appear, a judgment by default was rendered against Thomas C. and Catherine A. English, administrator and administratrix of Walter A. English, deceased. They now prosecute this writ, and assign for error the rendition of judgment against Catherine A. English. 2. In rendering a joint judgment after the discontinuance as to one. 3. In rendering judgment against the plaintiff in error. BLOUNT, for plaintiff in error. The discontinuance as to Catherine A. English, is a discontinuance of the entire action. The fact of her non-residence could not be contested by her co-administrator. A demurrer would not lie. [2 Wash. C. C. R. 505.] In order to sustain the judgment, it was necessary to prove a sole liability. The declaration is variant from the cause of action indorsed upon the writ. The contract set out in the indorsement shows that a demand was necessary before the action could be maintained. He cited 1 Stewart, 395; Cro. Jas. 303; 1 Lord Ray. 602; 1 Washington, 372; 10 Mass. 64; 11 Id. 507; 18 Pick. 417.] PECK, contra. The judgment is amendable at the costs of the plaintiff in error. ORMOND, J.—Executors and administrators, where there' are several who have qualified as such, constitute but one person, and must, in general, be joined in the writ. When, however, one of them is out of the jurisdiction of the court, and not amenable to its process, he may be omitted out of the writ. [Williams & Ivey v. Sims, 8 Porter, 579; Owen v. Brown, 2 Ala. Rep. 127.] English & English v. Brown. In this case, it appears from the declaration, that Catherine English, the administratrix, is not a resident of this State, and this fact, which the default admits, is a sufficient reason for the discontinuance which is there entered. It is then the same as if she had been omitted from the writ, and the suit had been commenced against the resident administrator alone, which, from the case cited, would have been the correct mode of procedure, the English practice of proceeding against the absent defendant by process of outlawry, never having obtained in this State. It is the established practice of this court, not to look to the indorsement on the writ, for the purpose of reversing the judgment, and even that a variance between the indorsement on the writ, and the declaration, cannot be pleaded in abatement. [Wharton v. French's, 9 Porter, 232; Williamson v. Powell, Ib. 493; Stephenson v. Roper, 5 Ala. Rep. 182.] The declaration is certainly exceedingly informal, but we are relieved from the necessity of inquiring whether it shows a cause of action, because its sufficiency is not questioned by any of the assignments of error. The practice of this court, from its earliest history, has been, to disregard a general assignment, which does not specify a particular error. It remains but to consider the judgment. The judgment entered up against Catherine English, after the suit was discontinued as to her, was such a clerical misprision as could have been amended in the court below, on motion, and will therefore be amended here, at the cost of the plaintiff in error. McKeen and wife v. Nelms. MCKEEN AND WIFE v. NELMS. 1. A landlord who becomes entitled to the possession of premises by the determination of a lease under an arrangement with his tenant, cannot maintain a proceeding for a forcible entry and detainer for an entry made while the tenant was in possession. 2. The sureties in a bond for a certiorari are only liable to the extent of its penalty, and if the judgment be rendered against them for a larger sum, the judgment will be amended on motion in the court below, or in an appellate court, at the costs of the plaintiff in error. Error to the Circuit Court of Perry. THIS was a proceeding for a forcible entry and detainer, instituted by the plaintiff in error, before a justice of the peace, to recover the possession of a lot, situated in the town of Marion. The cause was tried on the plea of "not guilty," and on the trial a bill of exceptions was sealed at the instance of the plaintiffs. It was proved, that in December, 1843, Carlos Reese went into possession of the premises in question, under a contract with H. Davis, the plaintiff's agent, and gave his notes for the rent of 1844. The tenant being apprehensive that he would be disturbed, the agent executed a bond, by which he stipulated that the rent was only to be paid, and the lease continue, for such time as he should occupy the premises without disturbance. In February, 1844, the tenant determined to leave the premises, and go to the country to live; accordingly, on the 19th of that month, he began to remove his goods, and while moving some of them, some household furniture, &c. was placed in the house he was preparing to leave, which defendant said was his property. How and by whom they were taken there, the tenant does not know. When the furniture, &c. were put into the house, tenant's wife, with some other members of his family, had not removed from it. The plaintiff's agent locked up some of the doors, and the tenant others. When the house was left, the latter handed to the former all the keys, remarking that he 9 507 93 320 9 507 99 493 McKeen and wife v. Nelms. did so, that the lease might be put an end to, and the rent cease. A witness introduced by the defendant testified, that he saw him nail up the door of the kitchen, that was on the premises, and that the defendant then remarked, that his object in thus closing the door was to keep the stock out. To the admission of this plaintiff objected. Before Reece left, he agreed to rent the premises for the remainder of his term to L. C. Tutt, and was to leave the keys for him with the plaintiff's agent; but as the defendant refused to remove his goods, Tutt never took possession. Since this proceeding was instituted, Davis gave up to Reece his notes for rent, accruing since the 19th February, 1844. Davis, after he had locked up the doors, met the defendant going towards the house, and proposed to go back, if defendant would remove his goods, when he became angry, ill words passed between them, and defendant refused to do so. Plaintiff, by himself and tenants, have been in possession for three or more years. Charges were prayed by plaintiff's counsel and refused, and other charges were given. The former assume that the facts proved show a disturbance of Reece-a determination of his tenancy simultaneously therewith, and a forcible entry and detainer by the defendant, for which the plaintiffs may recover; while the latter affirm the reverse to be the law. A verdict was returned for the defendant, and thereupon judgment was rendered against the plaintiffs for costs. The cause was removed to the Circuit Court by certiorari, where the judgment of the justice of the peace was affirmed, and rendered against the plaintiffs and their sureties in the certiorari bond, for costs. H. DAVIS, for the plaintiff's in error, insisted, that the evidence objected to was improperly admitted, that the landlord may complain of a forcible entry and detainer upon his tenant-the possession of the latter being in legal contemplation the possession of the landlord. [2 Stew. Rep. 474; 8 Porter's Rep. 57.] Depositing one's goods in another's house, and nailing up a door, make a forcible entry and detainer. [8 McKeen and wife v. Nelms. Porter's Rep. supra.] The bond executed by the plaintiff's upon obtaining a certiorari is in the penal sum of one hundred dollars; the costs in the proceeding before the justice of the peace, before its remoual to the Circuit Court, amounted to $144, and the judgment is rendered not only against the plaintiffs, but their sureties also for all costs. No counsel appeared for defendant. COLLIER, C. J.-It is not supposed that in order to constitute a forcible entry in the meaning of our statute, it is necessary for the party entering to employ physical force, either to expel the occupant or place himself in possession. Threats, menaces, or other circumstances calculated to excite apprehensions of danger, or manifest a determined purpose on the part of the intruder, which can only be repelled by force, we believe are quite sufficient. [7 Hals. Rep. 202; 8 Porter's R. 57; 3 A. K. Marsh. Rep. 297; 1 J J. Marsh. Rep. 44; 4 Bibb's Rep. 426.] The same circumstances of force or violence, that amount to a forcible entry, will also amount to a forcible detainer. [8 Cow. Rep. 226.] And it has been held, that an entry surreptitiously made, if maintained by force, will be considered a forcible entry. [Burt v. State, Const. R. S. C. 489; see 7 Hals. Rep. 202, 266.] To entitle one to maintain a forcible entry and detainer, he must have had possession when the entry was made. [Minors Rep. 131; 1 Porter's Rep. 144; 1 A. K. Marsh. Rep, 255; 3 Id. 347; 5 Mon. Rep. 18; 1 Litt. Rep. 226.] So it. has been held, that when a tenant is disseized, his landlord cannot maintain a forcible entry and detainer, but the proceeding must be in the name of the tenant. [3 A. K. Marsh. Rep. 128; 6. J. J. Marsh. Rep. 602; 2 Dana's Rep. 245; 3 Hals. Rep. 48.] It has been said that one who was neither in possession, nor had title when the premises were entered upon, cannot maintain a forcible entry and detainer, but if entitled to a summary remedy, should proceed for a forcible detainer only. [2 Litt. Rep. 295.] Further, an heir may maintain forcible detainer against the tenant of his ancestor, who holds over, with |