Page images



A FORCIBLE entry or detainer is committed by violently taking or Offence at keeping possession of lands and tenements with menaces, force, common law. and arms, and without the authority of the law. (a) It has been laid down in the books that, at common law, and before the passing of the statutes relating to this subject, if a man had a right of entry upon lands or tenements, he was permitted to enter with force and arms; and to detain his possession by force, where his entry was lawful : (b) and that even at this day he who is wrongfully dispossessed of his goods, may justify the re-taking of them by force from the wrong doer, if he refuse to re-deliver them. (c) However, it is clear that, in many cases, an indictment will lie at common law for a forcible entry, if it contain, not merely the common technical words, “with force and arms,” but also such a statement as shews that the facts charged amount to more than a bare trespass, for which no one can be indicted. (d) And, in a modern case in the court of King's Bench, it was mentioned, by the great Judge who then presided in that court, as a part of the law which ought to be preserved, that no one shall with force and violence assert his own title. (e) But on a subsequent day of the same term he said that the court wished that the grounds of their opinion in that case might be understood, and desired that it might not be considered as a precedent in other cases to which it did not apply. He then proceeded : “Perhaps some doubt may hereafter “arise respecting what Mr. Serjeant Hawkins says, that at com“ mon law the party may enter with force into that to which he “has a legal title. But without giving any opinion concerning " that dictum one way or the other, but leaving it to be proved or “ disproved whenever that question shall arise, all that we wish to “ say is, that our opinion in this case leaves that question un“ touched; it appearing by this indictment that the defendants

(a) 4 Blac. Com. 148.

1702. Rex v. Wilson and others, 8 (6) Dalt. Just. 297. Lamb. 135. T. R. 357. in which last case the inCrom. 70. a, b. í Hawk. P. C. c. 64. dictment charged the defendants S 1, 2, 3. 3 Bac. Abr. Forcible Entry (twelve in number) with having unlawand Detainer.

fully and with a strong hand entered, (c) I Hawk. P. C. c. 64. s. 1.

&c. and it was held good. (T) Rex v. Bake and others, 3 Burr. (c) By Lord Kenyon, C. J. Rex v. 1731. Rex v. Bathurst, Say. 223. re- Wilson and others, 8 T. R. 361. ferred to io Rex v. Storr, 3 Burr. 1699,



“ unlawfully entered, and therefore the court cannot intend that

“ they had any title.” (f) Offence by Whatever may be the true doctrine upon this subject at common statutes.

law, the statutes which have been passed respecting forcible entries and detainers are clearly intended to restrain all persons from having recourse to violent methods of doing themselves justice: and it is the more usual and effectual method to proceed upon these statutes, which give restitution and damages to the party

grieved. : Statutes, 5 R. By the 5 R. 2. c. 8. none shall make entry into any lands and 2. c. 8. None to

tenements but in cases where entry is given by the law; and in shall enter into lands, &c. such cases not with strong hand, nor with multitude of people, with strong but only in a peaceable and easy manner, on pain of imprisonment

and ransom. This statute gave no speedy remedy, leaving the party injured to the common course of proceeding by indictment

or action; and made no provision at all against forcible detainers. 15 R. 2. c. 2. The 15 R. 2. c. 2. goes further, and enacts, that on complaint of On complaint of forcible

int forcible entry into lands and tenements, or other possessions whatentry, justices soever, to the justices of peace or any of them, the justices or may commit justice take sufficient power of the county, and go to the place the offender until fine and

to where the force is made; and if they find any that hold such place

forcibly, after such entry, they shall commit them to the next gaol, there to abide, convict by the record of the same justices or justice, until they make fine and ransom: and that the people of the county and the sheriff shall assist, &c. on pain of imprisonment and fine. And it also enacts, that it shall be done in the same manner of them that make such forcible entries in benefices or offices of holy church. But this statute gave no remedy against those who were guilty of a forcible detainer after a peaceable entry, nor against those who were guilty of both a forcible entry and forcible detainer, if they were removed before the coming of a justice of peace; and it gave no power to the justice to restore the party injured to his possession, and did not impose any penalty on the sheriff for disobeying the precepts of the justices in the execution of the statute. Further enactments were therefore ne

cessary. (g) 8 H. 6. c. 9. The statute 8 H. 6. c. 9. enacts, that though the persons making Justices may forcible entries be present or else departed before the coming of enquire as well of those the justices or justice, the same justices or justice, in some good that make town next to the tenements so entered, or in some other convenient forcible entries as of

place, according to their discretion, shall have authority to enquire, those that by the people of the same county, as well of them that make such hold lands, &c. forcible entries in lands and tenements as of them which hold the with force.

same with force; and if it be found that any doth contrary to this statute, then the justices or justice shall cause to re-seise the lands and tenements, and shall put the party in full possession as before. (h) And after making provision concerning the precepts of the justices to the sheriff to return a jury to enquire of forcible entries, the qualification of the jurors, and the remedy by action (f) 8 T. R. 364.

collected in 3 Bac. Abr. Forcible En(g) Upon the imposing and levying try and Detainer, (A) in the notes. the fine under this statute of R. 2. see (h) S. 3. i Hawk. P. C. c. 64. s. 8, and the cases


tices of prey which there of the yards and ter

metamos a to be made if

against those who obtain forcible possession of lands, &c. it 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. (i) And it is then provided, This statute

bondó does not ex“ that they which keep their possessions with force in any lands does

tend to those “ or tenements, whereof they or their ancestors, or they whose who maintain “ estates they have in such lands and tenements, have continued possession af“their possessions in the same by three years or more, be not

enjoyment for “ endamaged by force of this statute.” (k)

three years. This proviso is further enforced by a statute, 31 Eliz, c. 11. 31 Eliz. c. 11. which enacts, “That no restitution, upon any indictment of for- No restitution “ cible entry, or holding with force, be made to any person or

the party in“ persons, if the person or persons so indicted hath had the occu- dicted hath “ pation, or hath been in quiet possession by the space of three been three “ whole years together next before the day of such indictment so yea

of auch indictment so years in quiet

possession, “ found; and his, her, or their estate or estates therein not ended and his estate “ or determined ; which the party indicted shall and may allege not ended. “ 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 al- Costs. “ legation 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.”

In the construction of these statutes it has been holden, that if Doubt upon a lessee for years or a copyholder be ousted, and the lessor or the statutes lord disseised, and such ouster, as well as disseisin, be found in an

in on whether lessee

for years or indictment of forcible entry, the court may, in their discretion, copyholder award a restitution of the possession to such lessee or copyholder; pusted by the which was, by necessary consequence, a re-seisin of the freehold

could have also, whether the lessor or lord had desired or opposed it. But it restitution :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 H. 6., the words of which are, that the justice “shall cause to re-seise 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 Removed by enacted by 21 Jac. 1. c. 15. that such judges or justices of the 21 Jac. 1. 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 term 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


or lord

[merged small][ocr errors]

sons wh

copy of court roll, seems at least to be within the meaning, if not within the words, of the statute. (1)

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 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) Construction. The law upon these statutes respecting forcible entries and de

tainers may be further considered with referemce,-1. 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. As to the per- I. A man who breaks open the doors of his own dwelling-house,

lay or of a castle, which is his own inheritance, but forcibly detained commit the offence, from him by one who claims the bare custody of it, cannot be

guilty of a forcible entry or detainer within these statutes. (n) But a joint-tenant or tenant in common may offend against them 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. (0) 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. (p) Aš to the pos- II. A person may be guilty of this offence by a force done to sessions in re ecclesiastical possessions, as churches, vicarage-houses, &c. as spect of which the offence much as if it were done to a temporal inheritance. And it has may be com- been holden, as a general rule, that a person may be indicted for a mitted.

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 an 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 terretenant 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 ease

(1) i Hawk. P. C. c. 64. s. 17.
(m) Id. Ibid. s. 17, 18.

(n) 3 Bac. Abr. 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.

(o) i Hawk. P. C. c. 64. s. 33.

(p) Id. s. 22: 34. Crom., 69. Dalt. c. 77. Co. Lit. 256.

ment which is no possession. But it seems that a man cannot be convicted, upon view, by force of the 15 R. 2. c. 2. of a forcible detainer of any incorporeal inheritance wherein he cannot be said to have made a precedent forcible entry. (9)

III. A forcible entry must regularly be with a strong hand, as to the acts with unusual weapons, or with menace of life or limb : it must be which will

amount to a accompanied with some circumstances of actual violence or terror; forcible entry. and an entry which has no other force than such as is implied by the law in every trespass is not within these statutes. (r) 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. (s) 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 assise, 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 reseise the rent, but only the lands and tenements themselves. (t) 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. (u) And there may be a forcible entry where any person's wife, children, or servants, are upon the lands to preserve the possession z 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. (w)

Whenever a man, either by his behaviour or speech, at the time forcible entry of his entry, gives those who are in possession of the tenements which from ci

stances of he claims just cause to fear that he will do them some bodily hurt, if terror. 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 speeches as plainly imply a purpose

(q) 1 Hawk. P. C. c. 64. s. 31. Bac. it is given as the author's opinion; and Abr. Forcible Entry, 8c. (C).

contrary opinions are noticed proceed(r) 3 Bac. Abr. Forcible Entry, 8c. ing on the ground that no violence (D). Dalt. 300. 1 Hawk. P. C. c. 64. was done to the house, but only to the sect, 25.

person of the party. (3) 1 Hawk. P. C. c. 64. s. 26.

(w) 3 Bac. Abr. Forcible Entry, (1) 3 Bac. Abr. Forcible Entry, &c.(B). &c. (B). (u) i Hawk. P. C. c. 64. s. 26. where

from circum

« EelmineJätka »