by the defendant, but we think the exception untenable. The action was for unliquidated damages, and in such cases the jury have discretion as to the allowance of interest. Johnson v. Railroad Co.1 N. D. 355, 48 N. W. Rep. 227. In cases like this, the rule has long been established that interest may be allowed upon the annual value of the use. Sedg. & W. Tr. Title Land, § 670.
Issue was joined, by a special denial, upon the averment of the complaint that the defendant unlawfully entered upon the land, and unlawfully evicted the plaintiff therefrom. In support of such averment, the plaintiff Schmitz testified, in substance, that he was living on the land at the time the defendant came with the sheriff, and that the “defendant made him get off.” That the sheriff said, “‘Get off, and stop there, or I will put the handcuffs on you, and put you in the Caledonia jail.’’ The reason I got off the land was because he threatened to put the shackles on me, and put me in jail.” Defendant when testifying, denied, substantially, that any threats were used at the time referred to, and stated that Schmitz, on such demand being made by the sheriff, voluntarily agreed to go, and did surrender possession voluntarily, and in obedience to the writ of execution issued by the justice of the peace in the unlawful detainer action. We think all of the testimony on this point was competent. But the court below took this feature of the case from the jury, and instructed them, in effect, that defendant’s entry upon and occupation of the premises were wholly unlawful. This instruction is assigned as error in this court. We think the instruction was not erroneous. The complaint in the unlawful detainer action, which, with the entire record in that action, was put in evidence, showed on its face that the justice could have no jurisdiction to try the action. The facts alleged in the complaint showed, in substance, that the defendant herein was the owner of the land by virtue of said tax title, and that, prior to the execution of the tax deed, Schmitz was the owner, and that since the defendant became the owner under the tax deed he had formally notified Schmitz to quit and vacate the land, but that Schmitz refused, and would not vacate.
