tenements so entered or holden as afore, and shall put the party put out in full possession as before." And after making provision concerning the precepts of the justices to the sheriff to return a jury to inquire of forcible entries, the qualification of the jurors, and the remedy by action against those who obtain forcible possession of lands, &c., sec. 6 enacts, that mayors, &c., of cities, towns, and boroughs, having franchise, shall have in such cities, &c., like power to remove such entries, and in other articles aforesaid, rising within the same, as the justices of peace and sheriffs in counties. Sec. 7 provides, that "they which keep their possessions with force in any lands or tenements, whereof they or their ancestors, or they whose estates they have in such lands and tenements, have continued their possessions in the same by three years or more, be not endamaged by force of this statute." And by the 31 Eliz. c. 11, "no restitution, upon an indictment of forcible entry, or holding with force, be made to any person or persons, if the person or persons so indicted hath had the occupation, or hath been in quiet possession by the space of three whole years together next before the day of such indictment so found, and his, her, or their estate or estates therein not ended or determined; which the party indicted shall and may allege for stay of restitution, and restitution to stay until that be tried, if the other will deny or traverse the same: and if the same allegation be tried against the same person or persons so indicted, then the same person or persons so indicted to pay such costs and damages to the other party as shall be assessed by the judges or justices before whom the same shall be tried; the same costs and damages to be recovered and levied as is usual for costs and damages contained in judgments upon other actions."

The 15 Rich. 2, c. 2, gave magistrates a summary jurisdiction in all cases of forcible entry; but in cases of forcible detainer, only where there had been a previous forcible entry; notwithstanding that statute, a party who had acquired the possession of lands peaceably but unlawfully, might afterwards detain them forcibly; that was a mischief the 8 Hen. 6, c. 9, was intended to remedy; and it gives justices summary jurisdiction only in cases of forcible detainer, preceded by an unlawful entry, and therefore a conviction *by justices on that statute merely stating an entry and a forcible detainer is insufficient.(k)

[*424

In the construction of these statutes it has been holden, that if a lessee for years or a copyholder be ousted, and the lessor or lord disseised, and such ouster, as well as disseisin, be found in an indictment of forcible entry, the Court may, in their discretion, award a restitution of the possession to such lessee or copyholder; which was, by necessary consequence, a re-seisin of the freehold also, whether the lessor or lord had desired or opposed it. But it was a great question, whether a lessee for years or a copyholder, being ousted by the lessor or lord, could have a restitution of their possession within the equity of 8 Hen. 6, the words of which are. that the justice "shall cause to re-seize the lands," &c., and by which it seems to be implied that the party must be ousted of such an estate whereof he may be said to be seised, which must at least be a freehold. For the purpose of removing this doubt, it was enacted by 21 Jac. 1, c. 15, that such judges, justices, or justice of the peace as by reason of any Act of Parliament then in force were authorized to give restitution to tenants of any estate of freehold of their lands, &c., entered upon by force, or withholden by force, shall have the like authority (upon indictment of such forcible entries or forcible withholdings) to give like restitution of possession to "tenants for terms of years, tenants by copy of court roll, guardians by knight's service, tenants by elegit, statute merchant and staple." It has been holden, that a tenant by the verge is not within this statute: but the propriety of this decision is doubted; as such person, having no other evidence of his title but by the copy of court roll, seems at least to be within the meaning, if not within the words, of the statute.()

If a lessor eject his lessee for years, and afterwards be forcibly put out of possession again by such lessee, he has no remedy for a restitution by force of any of the

(h) Rex v. Oakley, 4 B. & Ad. 307 (24 E. C. L. R.). See Rex v. Wilson, 1 A. & E. 627 (28 E. E. L. R.); Rex v. Wilson, 3 Ad. & E. 817 (30 E. C. L. R.); Attwood v Joliffe, 3 S. C. 116, as to the form of such a conviction.

(l) 1 Hawk. P. C. c. 64, s. 17.

VOL. I.-22

above-mentioned statutes: there seems, however, to be no doubt but that a justice of peace, &c., may remove the force, and commit the offender.(m)

The law upon these statutes respecting forcible entries and detainers may be further considered with reference-I. To the persons who may commit the offence. II. To the nature of the possessions in respect of which it may be committed. III. To the acts which will amount to a forcible entry. And, IV. To the acts which amount to a forcible detainer.

I. A man who breaks open the doors of his own dwelling-house, or of a castle, which is his own inheritance, but forcibly detained from him by one who claims the bare custody of it, cannot be guilty of a forcible entry or detainer within these *425] statutes.(n) Where a wife was indicted with others for a forcible *entry into a house, which she had taken for herself, but of which her husband had afterwards obtained possession with the landlord's consent, and it was objected that a wife could not be guilty of a forcible entry into the house of her husband; Lord Tenterden, C. J., said, "although a wife certainly cannot commit a trespass on the property of her husband, I am by no means satisfied that, if she comes with strong hand, she may not be indictable for a forcible entry, which proceeds on the breach of the public peace." "As at present advised I think she may be guilty of a forcible entry, if her entry was made under circumstances of violence amounting to a breach of the public peace."(0) But a joint tenant or tenant in common may offend against the statutes either by forcibly ejecting or forcibly holding out his companion; for though the entry of such a tenant be lawful per my et per tout, so that he cannot in any case be punished in an action of trespass at common law, yet the lawfulness of his entry does not excuse the violence, or lessen the injury, done to his companion; and, consequently, an indictment of forcible entry into a moiety of a manor, &c., is good.(p) Also, where a man has been in possession of land for a great length of time by a defeasible title, and a claim is made by him who has a right of entry, the wrongful possessor, continuing his occupation, will be punishable for a forcible entry and detainer; because all his estate was defeated by the claim, and his continuance in possession afterwards amounts in the judgment of law to a new entry. (q) It does not follow from the decision in Rex v. Oakley(r) that the 8 Hen. 6, c. 9, does not apply to the case of a tenant at will or for years, holding over after the will is determined or term expired, because the continuance afterwards may amount in judgment of law to a new entry.(s)

II. A person may be guilty of this offence by a force done to ecclesiastical possessions, as churches, vicarage houses, &c., as much as if it were done to a temporal inheritance. And it has been holden, as a general rule, that a person may be indicted for a forcible entry into any such incorporeal hereditament for which a writ of entry will lie, either by the common law, as for rent, or by statute, as for tithes, &c. It is, however, questioned whether there be any good authority that such au indictment will lie for a common or office; though it seems agreed that an indictment of forcible detainer lies against any one, whether he be the terre-tenant or a stranger, who shall forcibly disturb the lawful proprietor in the enjoyment of these possessions; as by violently resisting a lord in his distress for a rent, or by menacing a commoner with bodily hurt, if he dare put in his beasts into the common, &c. No one can come within the danger of these statutes by a violence offered to another in respect of a way, or such like easement which is no possession.1

(m) 1 Hawk. P. C. 64, ss. 17, 18.

(n) Bac. Abr. tit. Forcible Entry, &c. (D.). 1 Hawk. P. C. c. 64, s. 32, where it is said also that a man will not be within the statutes who forcibly enters into land in the possession of his own lessee at will; but a qu. is subjoined. And see Rex v. Wilson, 8 T. R. 364; Taunton v. Costar, 7 T. R. 431; Turner v. Meymot, 1 Bing. 158, and Newton v. Harland, ante, p. 422, note (g), which seem to show that the position in the text is erroneous. C. S. G.

(0) Rex v. Smyth, 1 M. & Rob. 155; 5 C. & P. 201 (24 E. C. L. R.). And see Doe v. Daly, 8 Q. B. 934 (55 E. C. L. R.).

(p) 1 Hawk. P. C. c. 64, s. 33.

(q) Id. ss. 22, 34; Crom. 69; Dalt. c. 77; Co. Lit. 256.

(r) 4 B. & Ad. 307 (24 E. C. L. L.), ante, p. 424.

(s) Per Park, J., Rex v. Oakley, supra.

1 Nor for a ferry: Keys v. Lawless, Little's S. C. 184.

But it seems that a man cannot be convicted, upon view, by force of the 15 Rich. 2, c. 2, of a forcible detainer of any incorporeal inheritance wherein he cannot be said to have made a precedent forcible entry.(t)

*III. A forcible entry must regularly be with a strong hand, with [*426 unusual weapons, or with menace of life or limb: it must be accompanied with some circumstances of actual violence or terror; and an entry which has ro other force than such as is implied by the law in every trespass is not within these statutes.(u)1 An entry may be forcible not only in respect of a violence actually done to the person of a man, as by beating him if he refuse to relinquish his possession; but also in respect of any other kind of violence in the manner of the entry, as by breaking open the doors of a house, whether any person be in it at the time or not, especially if it be a dwelling-house, and perhaps also by any act of outrage after the entry, as by carrying away the party's goods, &c., which being found in an assize of novel disseisin, will make the defendant a disseisor with force, and subject him to fine and imprisonment. (v) If a man enters to distrain for rent in arrear with force, this is a forcible entry, because, though he does not claim the land itself, yet he claims a right and title out of it, which by these statutes he is forbid to exert by force; but if a man who has a rent be resisted from his distress with force, this is a forcible disseisin of the rent, for which he may recover treble damages in an assize, or may fine and imprison the party: but he cannot have a writ of restitution; for the statute does not give the justices power to reseize the rent, but only the lands and tenements themselves.(w) If one find a man out of his house, and forcibly withhold him from returning to it, and send persons to take peaceable possession of it in the party's absence, this according to the better opinion is a forcible entry.(x) And there may be a forcible entry where any person's wife, children, or servants, are upon the lands to preserve the possession; because whatever a man does by his agents is his own act: but his cattle being upon the ground do not preserve his possession, because they are not capable of being substituted as agents; and, therefore, their being upon the land continues no possession. (y)

Whenever a man, either by his behavior or speech, at the time of his entry, gives those who are in possession of the tenements which he claims just cause to fear that he will do them some bodily hurt, if they will not give way to him, his entry is esteemed forcible; whether he cause such a terror by carrying with him an unusual number of servants, or by arming himself in such a manner as plainly intimates a design to back his pretensions by force, or by actually threatening to kill, maim, or beat those who shall continue in possession, or by giving out such

(t) 1 Hawk. P. C. c. 64, s. 31; Bac. Abr. tit. Forcible Entry, &c. (C.).

(u) Bac. Abr. tit. Forcible Entry, &c. (D.); Dalt. 300; 1 Hawk. P. C. c. 64, s. 25.

(v) 1 Hawk. P. C. c. 64, s. 26.

(a) Bac. Abr. tit. Forcible Entry, &c. (B.).

(z) 1 Hawk. P. C. c. 64, s. 26, where it is given as the author's opinion; and contrary opinions are noticed proceeding on the ground that no violence was done to the house, but only to the person of the party.

(y) Bac. Abr. tit. Forcible Entry, &c. (B.); Turner v. Meymot, 1 Bing. 158.

1 Indictment for forcible entry, &c., cannot be supported without some evidence of actual force or threats and appearance of personal ill usage: State v. Cargill, 2 Brevard 445. It is not necessary to constitute a forcible entry, that it should be made by a multitude of people; even where the entry is lawful, it must not be made by a multitude; where it is not lawful, it must not be made at all. The jury, from the evidence of a forcible detainer, may find the defendant guilty of a forcible entry: Burt v. State, 3 Brevard 413. In order to constitute a forcible entry, the possession must not be scrambling, but quiet, peaceable and actual, and the entry must be accompanied by actual force or intimidation: Comm. v. The Keeper of the Prison, 1 Ashm. 140. Locking the doors of a house and keeping the keys, closing the windows and driving a portion of the stock upon the premises constitute evidence of an actual possession of land, which will authorize a recovery in forcible entry and detainer: Davidson ». Phillips, 9 Yerger 93. To constitute a forcible entry and detainer, it is not necessary that violence and outrage upon persons or property should be resorted to. If the actual possession of another be taken and held, under circumstances which show that it will not be surrendered without a breach of the peace, it is a forcible entry and detainer: Childress v. Black, 9 Yerg. 317. See State v. Ross, 4 Jones (Law) 315.

speeches as plainly imply a purpose of using force against those who shall make any resistance.(z) And there is no necessity that any one should be assaulted; for if the entry be with such number of persons and show of force as is calculated to deter the rightful owner from sending them away, and resuming his own *427] * *possession, that is sufficient. (a) But a forcible entry is not proved by evidence of a mere trespass, there must be proof of such force, or at least such a show of force, as is calculated to prevent any resistance. (b) And though a man enter peaceably, yet if he turn the party out of possession by force, or frighten him out of possession by threats, it is a forcible entry.(c) But threatening to spoil the party's goods, or destroy his cattle, or to do him any similar damage, which is not personal, if he will not quit the possession, seems not to amount to a forcible eutry.(d)

If a person who pretends a title to lands merely go over them, either with or without a great number of attendants, armed or unarmed, in his way to the church, or market, or for a like purpose, without doing any act which either expressly or impliedly amounts to a claim of the lands, he cannot be considered as making an entry within the meaning of the statutes: otherwise, if he make an actual claim with any circumstances of force or terror.(e) Drawing a latch and entering a house seems not to be a forcible entry according to the better opinion :(ƒ) so if a wan open the door with a key, or enter by an open window, or if the entry be without the semblance of force, as by coming in peaceably, enticing the owner out of possession, and afterwards excluding him by shutting the door, without other force, these will not be forcible entries.(g)

A single person may commit a forcible entry as well as a number.(h) But all who accompany a man when he makes a forcible entry will be deemed to enter with him, whether they actually come upon the lands or not.(i) So, if several come in company where their entry is not lawful, and all of them, except one, enter in a peaceable manner, and that one only use force, it is a forcible entry in them all, because they come in company to do an unlawful act; but it is otherwise where one had a right of entry, for there they only come to do a lawful act, and therefore it is the force of him only who used it.(k) And he who barely agrees to a forcible entry made to his use, without his knowledge or privity, is not within the statutes, because he did not concur in or promote the force.(1)

IV. Forcible detainer is where a man, who enters peaceably, afterwards detains his possession by force: and the same circumstances of violence or terror which will make an entry forcible, will also make a detainer forcible. From whence it seems to follow that whoever keeps in his house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor, if he dare return, is guilty of a forcible detainer, though no attempt be made to re-enter: and it has been *said that he also will come under the like construction who *428] places men at a distance from the house in order to assault who any one shall attempt to make an entry into it; and that he is in like manner guilty who shuts his doors against a justice of peace coming to view the force, and obstinately refuses to let him come in.(m) This doctrine will apply to a lessee who, after the end of his term, keeps arms in his house to oppose the entry of the lessor, though no one attempt an entry; or to a lessee at will detaining with force after the will is determined:(n) and it will apply in like manner to a detaining with force by a (z) 1 Hawk. P. C. c. 64, s. 27.

(a) Milner v. Maclean, 2 C. & P. 17 (12 E. C. L. R.), Abbott, C. J.

(b) Rex v. Smyth, 5 C. & P. 201 (24 E. C. L. R.), Lord Tenterden, C. J.; s. c., 1 M. &

Rob. 155.

(c) Dalt. 299; Bac. Abr. tit. Forcible Entry, &c. (B.).

(d) 1 Inst. 257; Bro. tit. Duress 12, 16; 1 Hawk. P. C. c. 64, s. 28.

(e) 1 Hawk. P. C. c. 64, ss. 20, 21.

(ƒ) There have been different opinions upon this point: Noy 136, 137; Bac. Abr. tit. Forcible Entry, &c. (B.); 1 Hawk. P. C. c. 64, s. 26.

(g) Com. Dig. tit. Forcible Entry, &c. (A.) 3.

(h) Id. (A.) 2; 1 Hawk. P. C. c. 64, s. 29.

(i) 1 Hawk. P. C. c. 64, s. 22.

(7) 1 Hawk. P. C. c. 64, s. 24.

(k) Bac. Abr. tit. Forcible Entry, &c. (B.). (m) 1 Hawk. P. C. c. 64, s. 30.

n) See Per Park, J., Rex v. Oakley, 4 B. & Ad. 307 (24 E. C. L. R.), ante, p. 425.

mortgagor after the mortgage is forfeited, or to the feoffee of a disseisor after entry or claim by the disseisce. And a lessee resisting with force a distress for rent, or forestalling or rescuing the distress, will also be guilty of this offence.()

But a man will not be guilty of the offence of forcible detainer for merely refusing to go out of a house, and continuing therein in despite of another.(p) So that it is not a forcible detainer if a lessee at will, after the determination of the will, denies possession to the lessor when he demands it; or shuts the door against the lessor when he would enter; or if he keeps out a commoner, by force, upon his own land. (q) And it has been seen that the 8 Hen. 6, c. 9, does not apply to a person who has been in possession for three years by himself, or any other under whom he claims.(r) But a person in quiet possession for three years, and then disseised by force, and restored, cannot afterwards detain with force within three years after his restitution; for his possession was interrupted.(s)

The remedies against such as are guilty of forcible entries or detainers are either by action, by complaint to justices of the peace (who may proceed upon view or inquisition), or by indictment at the general sessions (1) And if a forcible entry or detainer be made by three persons or more, it is also a riot; and may be proceeded against as such, if no inquiry has before been made of the force.(u) Some of the points which have been determined with respect to an indictment for these offences, and also concerning the award of restitution, may be shortly noticed.(v)

The statutes seem to require that the entry should be laid in the indictment manu forti, or cum multitudine gentium: but some have holden that equivalent words will be sufficient, especially if the indictment concludes contra formam statuti; but it is not sufficient to say only that the party entered vi et armis, since that is the common allegation in every trespass.(w) No particular technical words are necessary in an indictment at common law; all that is [*429 required is, that it should appear by the indictment that such force and violence have been used as constitute a public breach of the peace.(x)

The tenement in which the force was committed must be described with convenient certainty; for otherwise the defendant will not know the particular charge to which he is to make his defence, nor will the justices or sheriff know how to restore the injured party to his possession. Thus an indictment of forcible entry into a tenement,(y) which may signify anything whatsoever wherein a man may have an estate of freehold,(z) or into a house or tenement, (a) or into two closes of meadow or pasture, (b) or into a rood or half a rood of land, (c) or into certain lands belonging to such a house, (d) or into such a house without showing in what town it lies, (e) or into a tenement, with the appurtenances, called Truepenny in D.,(f) is not good.1 But an indictment for a forcible entry in domum mansion

(0) Com. Dig. tit. Forcible Detainer (B.) 1. (g) Com. Dig. tit. Forcible Detainer (B.) 2.

(p) 1 Hawk. P. C. c. 64, s. 30.

(r) Ante, p. 423. And by the 31 Eliz. c. 11, (ante, p. 423) no restitution is to be given on an indictment of forcible entry or detainer, where the party has been three years in quiet possession before the indictment found, and his estate not determined.

(*) Com. Dig. tit. Forcible Detainer, (B.) 2.

(1) See the statutes, ante, p. 422; Com. Dig. tit. Forcible Entry, (C.) ;

Burn's Just. tit. Forcible Entry, &c., III., IV., V.

(u) Burn's Just. tit. Forcible Entry and Detainer, VII. Ante, p. 380.

Blac. Com 148;

() As to the proceedings by justices of peace, see Burn's Just. tit. Forcible Entry, &c., V.; Com. Dig. tit. Forcible Entry, (D.).

(w) Baude's case, Cro. Jac. 41; Rast. Ent. 324; Bac. Abr. tit. Forcible Entry, &c., (E.). (x) By Lawrence, J., in Rex v. Wilson, 8 T. R. 362.

(y) Dalt. 15; 2 Roll. R. 46; 2 Roll. Abr. 80, pl. 8; 3 Leon. 102.

(z) Co. Lit. 6 a.

(a) 2 Roll. Abr. 80, pl. 4, 5; Roll. R. 334; Cro. Jac. 633; Palm. 277.

(b) 2 Roll. Abr. 81, pl. 4.

(c) Bulst. 201.

(d) 2 Leon. 186; 3 Leon. 101; Bro. tit. Forcible Entry, 23.

(e) 2 Leon. 186.

(ƒ) 2 Roll. Abr. 80, pl. 7.

1 An indictment for forcible entry was arrested for want of certainty, the words being "a certain messuage, with the appurtenances, for a term of years, in the district of Spartanburg." It was adjudged that "the place where was not described with sufficient legal certainty": State v. Walker, 2 Brev. 255.