Circumstances which do not amount to a of using force against those who shall make any resistance. (x) 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, (y) 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 entry. (2) If a person who pretends a title to lands merely go over them, either with or without a great number of attendants, armed or unforcible entry. armed, in his way to the church, or market, or for a like As to the acts which will amount to a forcible detainer. 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. (a) Drawing a latch and entering a house seems not to be a forcible entry according to the better opinion: (b) so if a man 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. (c) A single person may commit a forcible entry as well as a number. (d) 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. (e) 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. (f) 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. (g) 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 places men at a distance from the house in order to assault any one who shall attempt to make an entry into it; and that he is in like (x) 1 Hawk. P. C. c. 64. s 27. (z) 1 Inst. 257. Bro. tit. Duress, manner guilty who shuts his doors against a justice of peace coming to view the force, and obstinately refuses to let him come in. (h) 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: and it will apply in like manner to a detaining with force by a mortgagor after the mortgage is forfeited, or to the fcoffee of a disseisor after entry or claim by the disseisee. And a lessee resisting with force a distress for rent, or forestalling or rescuing the distress, will also be guilty of this offence. (i) amount to a forcible de But a man will not be guilty of the offence of forcible detainer Circumstances for merely refusing to go out of a house, and continuing therein which do not in despite of another. (k) So that it is not a forcible detainer if a lessee at will, after the determination of the will, denies posses- tainer. sion 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. (1) And it has been seen that the statutę 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. (m) 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. (n) The remedies against such as are guilty of forcible entries or Remedies. detainers are either by action, by complaint to justices of peace, (who may proceed upon view or inquisition), or by indictment at the general sessions. (o) 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. (p) 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. (q) some The statutes seem to require that the entry should be laid in the indictment manu forti, or cum multitudine gentium: but 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. (r) No particular technical words are necessary in an indictment at common law; all that is required is, that it should appear by the indictment, (h) 1 Hawk. P. C. c. 64. s. 30. (i) 4 Com. Dig. Forcible Detainer (B 1.) (k) 1 Hawk. P. C. c. 64. s. 30. (7) 4 Com. Dig. Forcible Detainer (B 2.) (m) Ante, 285. And by 31 Eliz. c. 11. (ante, 285) 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. (n) 4 Com. Dig. Forcible Detainer (B 2.) (0) See the statutes, ante, 284 to 285. 4 Com. Dig. Forcible Entry (C). 4 Blac Com. 148. 2 Burn. Just. Forcible Entry, &c. III., IV., V. (p) 2 Burn. Just. Forcible Entry and Detainer VII. Ante, 219. (g) As to the proceedings by justices of peace, see 2 Burn. Just. Forcible Entry, &c. V. 2 Com. Dig. Forcible Entry (D); (r) Baude's case, Cro. Jac. 41. Rast. Ent. 354. 3 Bac. Abr. Forcible Entry, &c. (E). Of the indict ment. Statement of force and violence. that such force and violence have been used as constitute a public breach of the peace. (s) Description of The tenement in which the force was committed must be the premises. 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, (t) (which may signify any thing whatsoever wherein a man may have an estate of freehold), (u) or into a house or tenement, (w) or into two closes of meadow or pasture, (x) or into a rood or half a rood of land, (y) or into certain lands belonging to such a house, (2) or into such a house without shewing in what town it lies, (a) or into a tenement with the appurtenances called Truepenny in D., (b) is not good. But an indictment for a forcible entry in domum mansionalem sive messuagium, &c. is good, for these are words equipollent. (c) And an indictment for an entry into a close called Serjeant Herne's close, without adding the number of acres, is good; for here is as much certainty as is required in ejectment. (d) And an indictment may be void as to such part of it only as is uncertain, and good for so much as is certain: thus an indictment for a forcible entry into a house and certain acres of land may be quashed as to the land, and stand good as to the house. (e) Description of the estate of the party expelled. An indictment on the 8 Hen. 6. c. 9. (ƒ) must shew that the place was the freehold of the party grieved at the time of the force.(g) And in a case where the court of King's Bench quashed an indictment, because it did not appear what estate the person expelled had in the premises, they said that it was absolutely necessary that this should appear, otherwise it would be "ncertain whether any one of the statutes relative to forcible entries extended to the estate from which the expulsion was: the 5 Ric. 2. c. 7., the 15 Ric. 2. c. 2., and the 8 Hen. 6. c. 9., only extending to freehold estates; and the 21 Jac. 1. c. 15. extending only to estates holden by tenants for years, tenants by copy of court-roll, and tenants by elegit, statute merchant, and statute staple. () And it has been laid down as a general rule that an indictment cannot warrant a restitution, unless it find that the party was seised at the time. (i) But in an indictment at common law, where the breach of the public peace is the gist of the offence, and the prosecutor is not entitled to restitution and damages, it ap (d) 3 Bac. Abr. Forcible Entry, &c. (E). 1 Hawk. P. C. c. 64. s. 37. (e) 3 Bac. Abr. Forcible Entry, &c. (E). 1 Hawk. P. C. c. 64. s. 37. (f) Ante, 410. (g) Rex v. Dorny, 1 Lord Raym. 210. 1 Salk. 260. Anon. 1 Vent. 89. 2 Keb. 495. Hetl. 73. Latch, 109. (h) Rex v. Wannop, Say, R. 142. (i) 3 Bac. Abr. Forcible Entry, &c. (E) where, and in 1 Hawk. P. C. c. 64. s. 38. see the cases on this subject collected. And see also Rex v. Griffith et al. (c) Ellis's case, Cro. Jac. 633. Palm. 3 Salk. 169. 277. pears to be sufficient to state only that the prosecutor was in pos session of the premises. (j) disseisin, &c. A repugnancy in setting forth the offence in an indictment on Repugnancy; these statutes is an incurable fault: as where it is alleged that statement of the party was possessed of a term of years, or of a copyhold estate, and that the defendants disseised him; or that the defendants disseised J. S. of land then and yet being his freehold, for it implies that he always continued in possession; and if so, it is impossible he could be disseised at all. (k) It seems that an indictment on 8 Hen. 6. c. 9. setting forth an entry and forcible detainer is good, without shewing whether the entry was forcible or peaceable: but it must set forth an entry; for otherwise it does not appear but that the party has been always in possession, in which case he may lawfully detain it by force. (1) The time and place of the disseisin must be sufficiently set forth in the indictment: but it appears to be sufficient to state that the defendant on such a day entered, &c. end disseised, &c. without adding the words then and there; for it is the natural intendment that the entry and disseisin both happened together. (m) A disseisin is sufficiently set forth by alleging that the defendant entered, &c. into such a tenement, and disseised the party, without using the words "unlawfully," or "expelled," for they are implied. (n) But no indictment can warrant an award of restitution, unless it find that the wrong-doer ousted the party grieved, and also continues his possession at the time of the finding of the indictment; for it is a repugnancy to award restitution of possession to one who never was in possession, and it is vain to award it to one who does not appear to have lost it. (0) If a bill, both for a forcible entry and forcible detainer, be preferred to a grand jury, and found "not a true bill" as to the entry with force, and " a true bill" as to the detainer, it will not warrant an award of restitution; but is void, because the grand jury cannot find a bill, true for part, and false for part, as a petit jury may. (p) The same justice or justices before whom an indictment of Of the award forcible entry or detainer shall be found may award restitution: but of restitution. no other justices, except those before whom the inquest was found, can award restitution, unless the indictment be removed by certiorari into the court of King's Bench; and that court, by the plenitude of its power, can restore, because that is supposed to be implied by the statute; on the ground that whenever an inferior jurisdiction is erected, the superior jurisdiction must have authority to put it in execution. So, if an indictment be found before the justices of the peace at their quarter sessions, they have (0) 1 Hawk. P. C. c. 64. s. 41. (p) 1 Hawk, P. C. c. 64. s. 40. But this it seems does not apply to the case of different counts in the same indictment, but only where the grand jury find a true bill," and "not a "true bill" upon different parts of one and the same charge. See Rex v. Fieldhouse, Cowp. 323. Of the bar or stay to the award of restitution. authority to award a writ of restitution, because the statute having given power to the justices or justice to reseise, it may as well be done by them in court as out of it. (q) But the justices of oyer and terminer, or general gaol delivery, though they may enquire of forcible entries, and fine the parties, yet cannot award a writ of restitution. (2) Restitution ought only to be awarded for the possession of tenements visible and corporeal; for a man who has a right to such as are invisible and incorporeal, as rents or commons, cannot be put out of possession of them, but only at his own election, by a fiction of law, to enable him to recover damages against the person that disturbs him in the enjoyment of them; and all the remedy that can be desired against a force in respect to such possessions is to have the force removed, and those who are guilty of it punished, which may be done by 15 R. 2. c. 2. (s) And restitution is to be awarded only to him who is found by the indict'ment to have been put out of the actual possession, and not to one who was only seised in law. (t) Upon the removal of the proceedings into the court of King's Bench by certiorari, that court may award a restitution discretionally; and will so award, unless the defendant plead very soon, and take notice of trial within the term. (u) And where a conviction of a forcible entry was quashed in that court for uncertainty; but the restitution was opposed on an affidavit that the party's title (which was by lease,) was expired since the conviction; the court said they had no discretionary power in this case, but were bound to award restitution on quashing the conviction. (w) It appears by the proviso in the statute of 8 Hen. 6. c. 9. and also by the 31 Eliz. c. 11. that any one indicted upon these statutes may allege quiet possession for three whole years to stay the award of restitution; in the construction of which it has been holden, that such possession must have continued without interruption during three whole years next before the indictment. (x) And it has also been said that the three years' possession must be of a lawful estate; and therefore that a disseisor can (q) 3 Bac. Abr. Forcible Entry, &c. (F). (r) Id. ibid and 1 Hawk. P. C. c. 64. s. 51. where it is said that justices of oyer and terminer have no power either to enquire of a forcible entry or detainer, or to award restitution on an indictment on the statutes; because when a new power is created by statute, and certain justices are assigned to execute it, it cannot regularly be executed by any other: and inasmuch as justices of oyer and terminer have a commission entirely distinct from that of justices of peace, they shall not from the general words of their commission ad inquirend' de omnibus, &c. be construed to have any such powers as are specially limited to justices of peace. But in 4 Com. Dig. Forc. Enir. (D 5.) it is said that jus tices of gaol delivery may award restitution upon an indictment before them: and Sav. 68. is cited: and afterwards Id. (D 7.) it is said that restitution shall not be by justices of assize, gaol delivery, or justices of peace, if the indictment was not found before them; and H. P. C. 140. Dalt. c. 44. 131. are cited: assuming here, as it should seem, that if the indictment were found before justices of assize and gaol delivery, they might award restitution. (s) 1 Hawk. P. C. c. 64. s. 45. Lamb. Just. 153. Co Lit. 323. (1) Lamb. Just. 153. Dalt. c. 83. (u) Rex v. Marrow, Ca. temp. Hardw. 174. (w) Rex v. Jones, 1 Str. 474. (x) 3 Bac. Abr. Forcible Entry, &c. (G). 1 Hawk, P. C. c. 64. s. 53. |