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By the Court,

Nelson, Ch. J.

It is insisted by the counsel for the plaintiffs in error that the facts found by the special verdict do [ *293 ] not support the issue, setting up a wrongful *eviction by the lessor, and that as all the other issues were expressly found for the defendants, judgment should have passed in their favor.

The plea undoubtedly sets up a tortious or wrongful entry and expulsion, and must be regarded in that light. It avers that the lessor, with force and arms, &c. entered in and upon the demised premises, and expelled and removed the lessees. In this respect it is in the usual form of pleas of this character. 2 Chitty, 486 and 633. 1 Saund. 204, n. 2. Salmon v. Smith, Asht. Ent. 411. 4 Cowen, 584. Sutherland, J. The fact also, if properly pleaded, constituted a perfect bar to the action, as the precedents of pleas above referred to show.

But the special verdict entirely fails to substantiate the plea. It shows'a laivful entry, and possession by reason of the forfeiture of the lease, instead of an unauthorized forcible expulsion. The principle, therefore, upon which the defence was placed by the pleadings, totally failed.

The plea itself was defective, and should have been demurred to. The wrongful entry and eviction, to constitute a bar, must have taken place before the rent claimed, fell due. Such is the form of the precedents, and the averment is material. 1 Saund. 204, n. 2. Comyns’ Land. and Ten. 524. 4 Cowen, 585.

It, is, however, insisted that the facts contained in the special verdict constitute an answer to the avowry upon another ground : namely, that the removal of the tenants under the landlord’s act, 2 R. S. 422, § 28, &c. for non-payment of rent due 1st February, operated as a ivaiver of the remedy by distress. Admitting this to be so, it is not the question presented upon the record, and that is a sufficient answer. The special verdict must be examined with reference to the issues which the jury are empanelled to try ; and the question is not, whether the facts found may not constitute a ground of defence if properly before the court, but whether or not, upon the whole record, the particular defence set up has been established. To that we respond, in this ease, that it has not been established ; that the [ *294 ] facts *fail to maintain it in judgment of law. The plaintiffs should have pleaded, specially, the resort to the remedy which it is contended waives the right of distress.

Judgment reversed : venire de novo from the C. P.

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