authority of this present parliament that such judges, justices or justice of the peace, as by reason of any Act or Acts of Parliament now in force, are authorized and enabled upon inquiry, to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon with force, or from them withholden by force, shall by reason of this present Act have the like and the same authority and ability from henceforth upon indictment of such forcible entries, or forcible withholding before them duly found, to give like restitution of possession unto tenants for term of years, tenants by copy of courtroll, guardians by knights' service, tenants by elegit, statute-merchant and staple, of lands or tenements by them so holden which shall be entered upon by force, or holden from them by force. [For indictment, see post, p. 1112.]

Indictment for a Forcible Entry into a Freehold. (5 Ric. 2, st. 1, c. 7, ante, p. 1108.)

Middlesex, to wit:-The jurors for our lord the King upon their oath present, that one J. N., on the first day of June, in the year of our Lord was seised in his demesne as of fee of and in a certain messuage, with the appurtenances, to wit, a certain messuage known as No.-, A. Street, situate and being in the parish of B., in the county of M.; and the said J. N., being so seised thereof as aforesaid, J. S. afterwards, to wit, on the day and year aforesaid, with divers other persons to the jurors aforesaid unknown, into the said messuage and appurtenances aforesaid, with force and arms, and with strong hand, unlawfully did enter, and the said J. N. from the peaceable possession of the said messuage, with the appurtenances aforesaid, with force and arms, and with strong hand [or "with multitude of people"], unlawfully did expel and put out; and the said J. N. from the possession thereof, so as aforesaid, with force and arms, and with strong hand, being unlawfully expelled and put out, the said J. S. from the said first day of June, in the year aforesaid, until the day of the taking of this inquisition, from the possession of the said messuage, with the appurtenances aforesaid, with force and arms, and with strong hand, unlawfully and injuriously did keep out, and still doth keep out; to the great damage of the said J. N.; against the form [as ante, p. 465]. The above count has been framed from the indictment in R. v. Fraser [1895] Cent. Crim. Ct. Counts for riot, affray, and assault may be added. See the precedents, 4 Went. 149; 6 Went. 403, 428; 10 Cox, App. xlix. A second count may be added for forcible detainer, see post, p. 1113. It used to be held necessary to describe the premises with the same certainty as in a declaration in ejectment, on account of the restitution which follows conviction. 1 Russ. Čr. (6th ed.) 726. But it would seem that this strictness is unnecessary, except as to the writ of restitution (see R. v. Child, 2 Cox, 102, Rolfe, B.), and that minor variances are now amendable under 14 & 15 Vict. c. 100, s. 1 (ante, p. 52). If the estate J. N. had in the premises were not a fee-simple, but an estate in tail, or for life merely, describe it as such. See R. v. Bowser, 8 Dowl. Pract. Cas. 128.

Misdemeanor: imprisonment, and ransom at the King's will (i.e., fine at the discretion of the court). 5 Ric. 2, st. 1, c. 7, ante, p. 1108.

Evidence.

The prosecutor must prove:-First, that he was seisel in fee of the premises in question, or otherwise in lawful possession, at the time of

the forcible entry. The prosecutor's title is not part of the issue, and probably need not, for purposes of conviction, be stated with precision. See R. v. Child, 2 Cox, 102: R. v. Hoare, 6 M. & Sel. 266; 18 R. R. 368. And proof that he was in the actual occupation of the premises, or in the perception of the rents and profits, is sufficient primâ facie evidence of his seisin. See Lows v. Telford, 1 App. Cas. 414; 45 L. J. (Ex.) 613; 13 Cox, 226: Jayne v. Price, 5 Taunt. 326; 15 R. R. 518. This presumption, however, may be rebutted, either by direct evidence of his having a less estate, or by evidence of circumstances from which the jury may presume it. Jayne v. Price, ubi supra. But it is immaterial whether the estate thus proved be an estate by right or by wrong; for even if the defendant have a right of entry, still his asserting that right "with strong hand, or with multitude of people," is equally an offence within the statute as if he had no right; and this is so even where a landlord forcibly ejects a tenant whose term has expired. Taunton v. Costar, 7 T. R. 431; 4 R. R. 481; and see Newton v. Harland, 1 Scott (N. R.) 474. If he was a mere trespasser, apparently the statute does not apply. Browne v. Dawson, 12 A. & E. 624: Scott v. Brown, 51 L. T. (N. S.) 746: Collins v. Thomas, 1 F. & F. 416, Lord Campbell, C.J.: R. v. Dillon, 2 Chit. (K. B.) 314. And the statute, however, does not extend to a case where the party ousted had the bare custody of the premises for the defendant; 1 Hawk. c. 64, s. 32; but it extends to the forcible ouster of one joint tenant, or tenant in common, by another. Id. s. 33. It may be considered a good general rule, also, that the statute extends to all hereditaments to which the defendant, if he had a right, might have asserted that right by a peaceable entry.

Secondly, the prosecutor must prove the forcible entry. An entry "with strong hand," or "with multitude of people," is the offence described in the statute. Therefore, an entry by breaking the doors or windows, etc., whether any person be in the house or not, especially if it be a dwelling-house, is a forcible entry within the statute. See 1 Hawk. c. 64, s. 26. So, an entry where personal violence is done to the prosecutor, or to any of his family or servants, or to any person or persons keeping the possession for him (Id. s. 26), or even where it is accompanied with such threats of personal violence (either actual, or to be implied from the actions of the defendant, or from his being unusually armed or attended, or the like), as were likely to intimidate the prosecutor or his family, etc., and to deter them from defending their possession (Id. ss. 20, 21, 27: Milner v. Maclean, 2 C. & P. 17), is a forcible entry within the statute. But an entry by an open window, or by opening the door with a key, or by mere trick or artifice, such as by enticing the owner out and then shutting the door upon him, or the like, without further violence; Com. Dig. Forc. Ent. (A. 3); 1 Hawk. c. 64, s. 26; or if effected by threats to destroy the owner's goods or cattle merely, and not by threats of personal violence, 1 Hawk. c. 64, s. 28, is not deemed a forcible entry. A mere trespass will not support an indictment for forcible entry; there must be such force or show of force as is calculated to prevent resistance. R. v. Smyth, 5 C. & P. 201; 1 M. & Rob. 155. If, however, whilst the owner is out of his house, the defendant forcibly withhold him from returning to it, and in the meantime send persons to take possession of it peaceably, this is said to be a forcible entry. 1 Hawk. c. 64, s. 26. Also, where a party having right, and whose entry is congéable, enters or makes claim, and the other party afterwards continues to hold possession by force; this is considered a forcible entry in the party so holding; because his estate is defeated by the entry or claim, and his continuance in possession is deemed a new entry. Id. ss. 22, 34; Co. Litt. 251.

Where the party entering has in fact no right of entry, all persons in his company, as well as those who do not use violence as those who do, are equally guilty; but if he have a right of entry, then those only who use or threaten violence; 3 Bac. Abr. Forc. Ent. (B.); or who actually abet those who do, are guilty. A wife may be guilty of a forcible entry into the dwelling-house of her husband, and other persons also, if they assist her in the force, although her entry in itself is lawful. R. v. Smyth, ubi supra.

Thirdly, as to the expulsion; it is necessary to prove the expulsion, and that the prosecutor is still kept out of possession, merely for the purpose of obtaining restitution of the premises; 1 Hawk. c. 64, s. 41; but it is no part of the offence described by the statute, which mentions a forcible entry merely. No restitution shall be awarded, if the defendant has been permitted to remain quietly in possession for three years, previously to the finding of the indictment. 31 Eliz. c. 11 (ante, p. 1109).

Absence of title in the prosecutor is no defence, the gist of the offence being the force. R. v. Williams, 4 Man. & Ry. 471: R. v. Studd, 14 W. R. 806; 14 L. T. (N. S.) 623 : Beddall v. Maitland, 17 Ch. D. 174: cf. Edwick v. Hawkes, 18 Ch. D. 199.

A judge at the assizes may, in his discretion, refuse to award restitution, after an indictment for forcible entry and detainer has been found by a grand jury; and the High Court will not review his decision. R. v. Harland, 2 M. & Rob. 141; 8 4. & E. 826; 1 Per. & D. 93; 8 L. J. (M. C.) 60: R. v. Hake, 4 Man. & Ry. 483, n. After conviction the writ is of right and as of course: see Short and Mellor, Cr. Off. Pr. 1447. As to the form of a writ of restitution, see Dalt. c. 182.

Indictment for a Forcible Entry into a Leasehold, etc. (21 Jac. 1, c. 15, ante, p. 1109.)

This may be the same as the last precedent, with such alterations only as are necessary to adapt it to a term of years, tenancy by copy of court-roll, or tenancy by elegit, etc., as thus:]--that J. N., late of, etc., etc., was possessed of a certain messuage with the appurtenances, situate and being in, etc., for a certain term of years, whereof divers, to wit, ten years, were then to come, and are still unexpired: and the said J. N. being so possessed thereof, etc., etc. (as in the last precedent).

Evidence.

The evidence is the same as in the last case, except as to the proof of the estate of the prosecutor in the premises.

Indictment for a Forcible Detainer. (8 H. 6, c. 9, ante, p. 1108.)

The same as in the last two precedents respectively, to the end of the statement of the seisin or possession; then proceed thus:]—and the said J. N. being so seised [or possessed] thereof, J. S. afterwards, to wit, on the day and year aforesaid, into the said messuage, with the appurtenances aforesaid, unlawfully did enter, and the said J. N. from the peaceable possession of the said messuage, with the appurtenances aforesaid, then and there unlawfully did expel and put out; and the said J. N. from the possession

thereof so as aforesaid being unlawfully expelled and put out, the said J. S., from the said third day of August in the year aforesaid, until the day of the taking of this inquisition, from the possession of the said messuage, with the appurtenances aforesaid, with force of arms and with strong hand unlawfully and injuriously did keep out, and the said messuage with the appurtenances and the possession thereof unlawfully and forcibly did hold and detain, and still doth hold and detain with force and arms and strong hand from the said J. N.; to the great damage of the said J. N.; against the form (as ante, p. 465). See 3 Chit. Cr. L. 1136 a.

Evidence.

Prove the seisin or possession, as in the two former cases. Prove an entry; whether peaceable or not is immaterial. Proof of the expulsion, which ex vi termini implies force, is not material, as the gist of the offence is the forcible detainer merely. Holding the premises from the prosecutor by force, however, must be proved: and the same violence or terror which will make an entry forcible, will also make a detainer forcible. 1 Hawk. c. 64, s. 30; 1 Russ. Cr. (6th ed.) 311. But merely refusing to go out of the house (1 Hawk. c. 64, s. 30); or a tenant at will denying possession to his lessor; or a man keeping out of his land, by force, a person claiming common upon it (Com. Dig. Forc. Det. (B. 2)), is not a forcible holding within the meaning of the statutes. See R. v. Oakley, 4 B. & Ad. 307; 2 L. J. (M. C.) 24 : R. v. Wilson, 1 A. & E. 627; 3 L. J. (M. C.) 96 : R. v. Wilson, 3 A. &. E. 817; 4 L. J. (M. C.) 114.

Indictment for a Forcible Entry and Detainer. (Common Law.)

For precedent of such indictment, see the 22nd edition of this work, p. 1057. It is said that an indictment will lie at common law for a forcible entry, although it is generally brought on the statutes. Per Wilmot, J., in R. v. Bake, 3 Burr. 1731: but see R. v. Storr, 3 Burr. 1698. It is said to have been proper to indict at common law where the entry was made without legal title (1 Hawk. c 64, s. 1: R. v. Wilson, 8 T. R. 357; 4 R. R. 694); or where the prosecutor would on an indictment under the old statutes have been incompetent as a witness. R. v. Williams, 9 B. & C. 549; 4 Man. & Ry. 471.

Misdemeanor at common law: fine or imprisonment, without hard labour, or both. See ante, pp. 238, 240.

Evidence.

The evidence of the forcible entry, upon this indictment, must be stronger than is required to support an indictment on the statutes; that is to say, there must be proof of such a force as constitutes a public breach of the peace, or such proceedings as constitute a riot or unlawful assembly (ante, pp. 1098, 1101). R. v. Wilson, ubi supra: R. v. Bake, ubi supra.

It is not necessary to set forth, or prove the particulars of the prosecutor's estate in the messuage, etc., because in this case there is no restitution stating that J. N. was possessed, and proving his possession, will be sufficient. R. v. Wilson, supra. For the same reason, it does not seem to be necessary to prove the expulsion or detainer, unless where the prosecutor has failed to prove the entry to have been forcible. (See ante, p. 1111.)

SECT. 6.

POUND-BREACH AND RESCUE OF DISTRESS.

Common Law.

Pound-breach is a misdemeanor indictable at common law. It consists in the forcible release of cattle, etc., lawfully placed in a proper pound (Green v. Duckett, 11 Q. B. D. 275; 52 L. J. (Q. B.) 435), or in forcibly damaging or destroying the pound with that object. 1 Co. Inst. 47; 1 Russ, Cr. (6th ed.) 822; 2 Chit. Cr. L. 205; Steph. Dig. Cr. Law (6th ed.), 121; Bullen on Distress (2nd ed.), 248: R. v. Bradshaw, 7 C. & P. 233: R. v. Butterfield, 17 Cox, 598. For precedents of indictments, see Cro. Circ. Comp. 199; 2 Chit. Cr. L. 205; 4 Went. 314. The offence is also summarily punishable under 6 & 7 Vict. c. 30. Rescue of a distress for rent seems also to be an indictable misdemeanor at common law. R. v. Nicholson, 65 J. P. 298; and see R. v. Noonan, Ir. Rep. 10 C. L. 505; 10 Cox, 302 (C. C. R. Ir.): R. v. Walsh, Ir. Rep. 10 C. L. 511. For precedent of indictment, see Cro. Circ. Comp. 198. It consists in forcibly taking away things legally distrained from the distrainor before they are impounded. Bullen on Distress (2nd ed.), 244. But it is usual to resort to the civil remedy by treble damages under 2 W. & M. c. 5, s. 3, and 11 G. 2, c. 19, s. 10: Kemp v. Christmas [1898] 79 L. T. (N. S.) 233; 14 T. L. R. 572. Rescue of a distress for rates appears also to be indictable. R. v. Brenan, 6 Cox, 381 (Ir.); 6 Ir. Jur. (O. S.) 307: R. v. Westropp, 2 Ir. C. L. Rep. 213. It is not necessary in such a case to prove the making of the rate, or that anything is due; and it is sufficient to prove a warrant in proper form. Id. If the distress warrant is bad, the rescue is justifiable. R. v. Boyle, 6 Ir. C. L. Rep. 598; 7 Cox, 428 (C. C. R. Ir.); and cf. R. v. Pigott, 1 Ir. C. L. Rep. 471.

SECT. 7.

CHALLENGE TO FIGHT.

Indictment for sending a Challenge. (Common Law.)

Kent, to wit:--The jurors for our lord the King upon their oath present, that J. S., being a person of a turbulent and quarrelsome temper and disposition, and contriving and intending not only to vex, injure, and disquiet one J. N., and do the said J. N. some grievous bodily harm, but also to provoke, instigate, and excite the said J. N. to break the peace, and to fight a duel with and against him the said J. S., on the first day of June, in the year of our Lord ,* wickedly, wilfully, and maliciously did write, send, and deliver, and cause and procure to be written, sent, and delivered unto him the said J. N. a certain letter and paper writing containing a challenge to fight a duel with and against him the said J. S., and which said letter and paper writing is as follows, that is to say [here set out the letter, with such innuendoes as may be necessary]: to the great damage, scandal, and disgrace of the said J. N., in contempt of our lord the King and his laws, and against the peace of our lord the King, his crown and dignity. (2nd Count.)—And the jurors aforesaid, upon their