to any one who shall attempt to enter, uses a larger quantity of arms that is usual for protection, or assembles a crowd of people to repel the approach of others. Com. Dig. Justices, B. 1. It may be committed by a lessee forcibly maintaining possession when his term is expired, a mortgagor after forfeiture of the mortgage, the feofee of a disseisor after entry or claim of the party disseised, and a tenant when he forcibly resists a distress for rent in arrear. id. ibid. It is punished rather as a breach of the peace than an offence against the property of an individual. At all events, it is evident from the modern cases, that an actual breach of the peace and a violence must be charged in the indictment, or the court will quash it upon motion, or the defendant may demur. 3 Burr. 1701, 1706, 1731, 8 T. R. 360. For no indictment will lie for a mere civil injury, however obnoxious the trespass. id. ibid. It is clear however that an indictment may be supported at common law for a forcible entry, 8 T. R. $60. The 5 Rich. 2. c. 7. enacts "that none from henceforth make any entry into any lands and tenements but in case where entry is given by the law; and in such case not with strong hand nor with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will." This act, however, gave no new or speedy remedy. And, therefore, the 15 Rich. II. c. 2. empowers any justice of the peace, on complaint made to him, to take sufficient power of the county and go to the place where the force is made, and if he there find a party holding forcible possession, he may send him to the next gaol there to abide convict by the record of the justice till he makes fine and ransom to the king. This act being found defective, the 8 Hen. VI. c. 9. extends it to a forcible detainer; gives justices power to enquire of a forcible entry though the violence is over before they arrive; to re-seize the lands and tenements, and restore possession of them to the party ejected. It is, however, provided that those who keep with force premises of which they or their ancestors have continued in possession for three years or upwards are not within the statute. And further to enforce this proviso, the 31 Eliz. c. 11. declares and enacts," that no restitution upon any indictment of forcible entry or holding with force be made to any person if the person so indicted hath had the occupation or been in quiet possession for the space of three whole years together next before the day of such indictment so found, and his estate therein not ended; which the party indicted may allege for stay of restitution, and restitution to stay till that be Indictment. tried if the other will deny or traverse the same." And by the 21 Jac. 1. c. 25. it is provided "that such judges, justices or justice of the peace as by reason of act or acts of parliament then in force were authorized and enabled upon enquiry to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon by force, or from them withholden by force, shall by reason of that act have the like and the same authority and ability from thenceforth (upon indictment of such forcible entries or forcibly withholding before them duly found) to give like restitution of possession unto tenants for term of years, tenants by copy of court-roll, guardians by knight's service, tenants by elegit, statute merchant, and staple of lands or tenemen's by them so holden, which shall be entered upon by force, or holden from them by force." The restitution of the land, is, therefore, the principal reason for indicting. Indictment. In an indictment for a forcible entry the place must be described in terms sufficiently certain. And, therefore, if it merely charges that the defendant forcibly entered a certain tenement, which may signify any thing, which may be held and even an incorporeal hereditament, it will be defective. 1 Sess. Cas. 357. 1 East 441. 2 Stra. 891. So, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or certain lands belonging to a house, is bad, for the same certainty is required as in a declaration in ejectment. Hawk. b. 1. c. 64. s. 37. The indictment must also shew what party had the possession of the premises. 1 Sess. Cas. 359, and on the 8 Hen. VI. must state that the place was the freehold of the party grieved; but it seems to be sufficient on the statutes of Richard the Second to shew who had the possession. Hawk. b. 1. c. 64. s. 38. On the 8 Hen. VI. the allegation must be express, that the place was the freehold of the party grieved, at the time the injury arose. id. ibid. And as under this act it must be shewn that the party aggrieved was seised of a freehold, in order to bring the case within it, so under 21 Jac. 1. c. 15. the indictment must allege such an estate in him as that statute requires; and, therefore, to set forth, in general, that he was possessed, or possessed for a certain term, without adding that it was for years, is not good, for, in the first case, it may be supposed that he is merely a tenant at will, and, in the second, that he is possessed of a term for life, in neither of which cases will the statute of James apply. Hawk. b. 1. c. 64. s. 38. But an indictment at common law, stating that the prosecutor was possessed will suffice. 8 T. R. 360. The indictment need not state the offence to have been committed both manu forti and vi et armis, but the former will suffice, as it includes the latter. Cro. Eliz. 461. It is the words "with a strong hand" that distinguish the indictable offence from the civil trespass. At least a public breach of the peace must appear. 8 T. R. 361, 2. If the word "disseised" is inserted, it is not also necessary to use the terms expelled or unlawfully, for the last is superfluous, and the first is implied in the word disseised, but unless the word disseised be used, the indictment at common law should contain the word "expelled," 8 T. R. 357. Cro. Jac. 32. It appears also to be sufficient to allege that the defendant on such a day entered and disseised the prosecutor without adding the words then and there to the disseisin Cro. Jac. 41, 151. An indictment for a forcible detainer is good without shewing that the defendant's originial entry was peaceful Cro. Jac. 19. But it seems clear that an entry must be shewn as the act would not apply if the party had been always in possession. Hawk. b. 1. c. 64. s. 40. It seems to have been left doubtful whether an indictment, stating that the defendant entered and disseised without saying whether the entry was peaceable or violent, is good, Cro. Eliz. 915. though, on principle, it appears to be defective as charging no specific offence. And it is clear that repugnancy in stating the charge will vitiate; as if, in an indictment on 8 Hen. VI. setting forth that the defendants peaceably entered and then and there with force and arms disseised the prosecutor; or if it set forth a disseisin of land then and still being the freehold of the party grieved; for it appears that he always remained in possession, in which case there can have been no disseisin Alleyn. 50. 2 Rol. Rep. 311. It is said that a forcible detainer need not be laid as against the peace; but it is not usual to omit this allegation. Cro. Jac. 32, 151. Plea. A person indicted of a forcible entry may delay the award Plea. of execution by traversing the force, or by plea of three years, possession. 1 Ld. Raym. 440. When the proceedings are removed into the king's bench by certiorari, the defendant must plead in stanter. titution. Award of restitution. As to the award of restitution, see Award of ResHawk. b. 1. c. 64. s. 45 to 66. If the defendant be unjustly put out of possession the court of king's bench will make re-restitution of the lands, Cro. Jac. 151. Alleyn 50. INDICTMENTS FOR FORCIBLE ENTRIES AND DETAINERS. For a forcible entry and de tainer at com. mon law. (a) Indictment at common law for forcible entry and expulsion from possession. (c) That A. B. late, of, &c. and C. D. late of, &c. together with divers other evil disposed persons, and disturbers of the peace of our said lord the king, to the number of six and more, whose names to the jurors aforesaid are as yet unknown, on, &c. with force and arms, and with a strong hand, (b) unlawfully, violently, forcibly, and injuriously did enter into, &c. [state the premises according to the fact,] (c) then and there being in the peaceable possession of one E. F. (d) and situate and being in the parish aforesaid, in the county aforesaid; and that the said A. B. and C. D. together with the said other evil disposed persons, then and there with force and arms, and with a strong hand, unlawfully, violently, forcibly and injuriously did expel, amove, and put out the said E. F. from the possession of the said premises with the appurtenances, and the said E. F. so as aforesaid expelled, amoved, and put out from the possession of the same with force and arms, and with a strong hand, unlawfully, violently, forcibly, and injuriously have kept out from the day and year aforesaid, until the taking of this inquisition, and still do keep out, and other wrongs to the said E. F. then and there did, to the great damage of the said E. F. and against the peace, &c. That C. P. late of, &c. T. C. late of, &c. together with divers other evil disposed persons, and disturbers of the peace of our said lord the king, to the number of ten and more, whose names to the jurors aforesaid are as yet unknown, on, &c. with force and arms, and with a strong hand, at, &c. aforesaid, into one shop, one warehouse, and one stable, being parcel of the dwelling house of L. H. widow, there situate, unlawfully, violently, forcibly, and injuriously did enter, the said shop, warehouse, and stable, then and there being in the peaceable possession of one R. F. and situate and being in the parish aforesaid, in the county aforesaid, and him the said R. F. from the possession of the same premises with force and arms, and with a strong hand, then and there unlawfully, (a) See similar precedents Starkie, 422. Cro. C. C. 199. 8 T. R. 357. (b) This allegation or some words equivalent to it, are essential, 8 T. R. 357. (c) The same certainty of description is requisite as in a decla ration in ejectment. (d) It must be shown who was actually in possession, 1 Sess. Cas. 359. (e) See precedents, Cro. C. C. 362. 8 T. R. 357. 2 Starkie, 422. see general note ante 1120 to 1122. violently, forcibly, and injuriously did expel, put out, gnd rémové from the possession of the said premises, with the appurtenances, and him the said R. F. so as aforesaid expelled, put out, and removed from the possession of the said premises on the day and year above mentioned, and continually afterwards, until the day of taking this inquisition, with force and arms, and with a strong hand, at, &c. aforesaid, did unlawfully, violently, forcibly and injuriously keep out, and still do keep out, and other wrongs to the said R. F. then and there did, to the great damage of the said R. F. and against the peace of our said lord the king, his crown and dignity. Westmorland. That A. I. late of, &c. on, &c. and before and For a forcible entry and deat the time of committing of the offence lereafter mentioned, was tainer, on the possessed of a certain messuage with the appurtenances, situate, statutes. (ƒ)' lying, and being in, &c. aforesaid, for a certain term of years, then and still to come and unexpired, and being so possessed thereof, one A. O. late of, &c. afterwards, to wit, on the said, &c. into the same messuage, with the appurtenances aforesaid, in, &c. aforesaid, with force and arms, and with strong hand unlawfully did enter, and the said A. I. from the peaceable possession of the said messuage, with the appurtenances aforesaid, then and there with force and arms, and with strong hand unlawfully did expeľ and put out, and the said A. I. from the possession thereof so as aforesaid, with force and arms, and with strong hand, being unlawfully expelled and put out, the said A. O. him the said A. I. from the aforesaid, &c. 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 then and there did keep out, and doth still keep out, to the great damage of the said A. I. against the peace, &c. and against the form of the statute in that case made and provided. That A. B. late of, &c. and C. D. late of, &c. together with For a forcible divers other evil disposed persons, and disturbers of the peace of entry into a freehold, on our said lord the king, whose names to the jurors aforesaid are as st. 5. and 15. yet unknown, on, &c. with force and arins, and with a strong hand R. 2. (8) did enter into, &c. [here state the premises according to the fact,] then and there being the freehold of E. F. and then being in the tenure and occupation of one G. H. and did then and there with force and arms, unlawfully with a strong hand, and without judg (f) See similar precedents, Burn. J. Forcible Entry. 4 Wentw. 404. Cro. C. C. 200. Burn. J. Forcible Entry. Starkie, 425. and Crim. Law. general note ante 1120 to 1122. (g) Sce a similar precedent, |