Appeal from tbe Circuit Court of Butler.

Tried before tbe Hon. John K. Henry.

This action was brought by D. J. Ferguson and Benjamin Newton, against Herbert Carter, and was commenced on tbe lOtb October, 1860. Tbe original complaint was in these Words : “ Tbe complaint of D. J. Ferguson and Benjamin Newton sbowetb, that’tbe said Ferguson and Newton, on tbe 1st day of June, 1857, was lawfully seized and possessed of a certain tract of land, to-wit, tbe south-west quarter of tbe south-west quarter of section thirty-six, township eleven, range thirteen, lying and being in tbe county aforesaid; and being so seized, on tbe day aforesaid, one Herbert Carter did enter on and take possession of tbe said premises, notwithstanding tbe said Carter being notified by us (Ferguson and Newton) not to enter on said premises, and that we held tbe lawful title to said premises on and after tbe first day of June, 1857; and said complainants did, in a quiet and peaceable manner, go to and demand possession of tbe premises aforesaid, to-wit, on tbe — day of February, 1860, in tbe county aforesaid; but tbe said defendant then and there resisted us, and refused to give and surrender tbe possession of tbe said premises to tbe complainants, although requested so to do, but then and now unlawfully bolds and detains tbe said premises, against tbe right and lawful claim and entry of tbe said complainants, and against their consent and will, to their great damage.” •

: Tbe plaintiffs recovered a judgment before tbe justice of tbe peace, and the' cause was then removed by tbe defendant, by appeal, to tbe circuit court. Tbe defendant there demurred to tbe complaint, and assigned tbe following grounds of demurrer : “ 1st, that it appears from said complaint that tbe defendant has been in possession of tbe premises for more than three years before tbe exhibition of tbe complaint; 2d, that said complaint does not allege that tbe plaintiffs were ever in tbe actual possession of said premises ; 3d, that said complaint does not show that the defendant entered on the premises with force or strong hand, or by exciting fear or terror, or by any threats of violence to the party in possession, or by any other actions or words having a tendency to excite fear or apprehension of danger; 4th, that said complaint does not show that the defendant put out of doors or removed the goods and chattels of the complainants from the premises; 5th, that the complaint does not allege that the defendant entered peaceably, and then, by force or threats, turned out, or kept the complainants out of the actual possession of the premises; and, 6th, because there is no allegation that the defendant occupied the premises as the tenant of the complainants, and, after the termination of his possession entered (?) refused, on demand in writing, to deliver to the complainants;” • ! .

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