Construction. As to the per commit the offence. 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) The law upon these statutes respecting forcible entries and detainers may be further considered with referemce,-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, sons who may 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 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. (o) 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) As to the pos spect of which the offence may be committed. 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 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 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 (2) 1 Hawk. P. C. c. 64. s. 17. (n) 3 Bac. Abr. Forcible Entry, &c. into land in the possession of his own 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. (q) amount to a forcible entry. 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 accompanied with some circumstances of actual violence or terror; 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; 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) stances of terror. 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 circumhe 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 speeches as plainly imply a purpose (q) 1 Hawk. P. C. c. 64. s. 31. Bac. Abr. Forcible Entry, &c. (C). (r) 3 Bac. Abr. Forcible Entry, &c. (D). Dalt. 300. 1 Hawk. P. C. c. 64. sect. 25. (s) 1 Hawk. P. C. c. 64. s. 26. it is given as the author's opinion; and (w) 3 Bac. Abr. Forcible Entry, 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. (z) 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 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) As to the acts which will amount to a forcible detainer. 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) 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 feoffee 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 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 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 statute 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. (0) 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. (g) ment of force and violence. The statutes seem to require that the entry should be laid in Of the indictthe indictment manu forti, or cum multitudine gentium: but some ment. Statehave 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. (2) 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 VOL. I. U (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, 249. (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). 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 uncertain 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. |