of religious disquiet or disturb any meeting, assembly, or congregation of per- disturbance sons assembled for religious worship, permitted or authorized by assemblies. this act, or any former act or acts of parliament, or shall in any way disturb, molest, or misuse any preacher, teacher, or person officiating at such meeting, assembly, or congregation, or any person or persons there assembled; such person or persons so offending, upon proof thereof before any justice of the peace by two or more credible witnesses, shall find two sureties to be bound by recognizances in the penal sum of fifty pounds to answer for such offence; and in default of such sureties shall be committed to prison, there to remain till the next general or quarter sessions; and upon conviction of the said offence at the said general or quarter sessions shall suffer the pain and penalty of forty pounds." (y) A subsequent section of the statute provides that nothing contained in the act shall extend to Quakers, nor to any meetings or assemblies for religious worship held or convened by them. (2) It has been holden upon this statute, in conformity to the deci- Certiorari. sion which has been mentioned upon the 1 Wm. & M. c. 18, (a) that an indictment found at the quarter sessions may be removed into the Court of King's Bench by certiorari before trial, (b) and may be tried at the assizes. A similar provision to that contained in the 1 Wm. & M. c. 18, s. 18, (c) relating to Protestant dissenters, is enacted in the 31 Geo. 3, c. 32, s. 10, with respect to Roman Catholic congregations, or assemblies of religious worship permitted by the latter statute. The facts attending disturbances of religious assemblies may sometimes authorize proceedings at common law for a conspiracy or a riot: (d) and we have seen that by the 7 & 8 Geo. 4, c. 30, s. 8, if persons riotously assembled begin to demolish or pull down any church or chapel, or any chapel for the religious worship of persons dissenting from the worship of the united church of England and Ireland, duly registered or recorded, they will be guilty of felony. (e) (y) 52 Geo. 3, c. 155, s. 12. (z) Id. s. 14. (a) Rex v. Hube, ante, 302. (b) Rex v. Wadley, 4 M. & S. 508. (c) Ante, 280. (d) See Preced. 2 Chit. Crim. L. 29. 31 Geo. 3, c. Roman Catholic congrega 32, disturbing tions. Conspiracies or riots. CHAPTER THE TWENTY-NINTH. Offence at common law. OF FORCIBLE ENTRY AND DETAINER. A FORCIBLE entry or detainer is committed by violently taking or keeping possession of lands and tenements with menaces, force, 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 shows 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 common 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 untouched: it appearing by this indictment that the defendants unlawfully entered, and therefore the (a) 4 Blac. Com. 148. (b) Dalt. Just. 297. Lamb. 135. Crom. 70 a, b. 2 Hawk. P. C. c. 64, s. 1, 2, 3. Bac. Abr. tit. Forcible Entry and Detainer. (c) 1 Hawk. P. C. c. 64, s. 1. (d) Rex v. Bake and others, 3 Burr. 1731. Rex v. Bathurst, Say. 225, referred to in Rex v. Storr, 3 Burr 1699, 1702. Rex v. Wilson and others, 8 T. R. 357, in which last case the indictment charged the defendants (twelve in number) with having unlawfully and with a strong hand entered, &c., and it was held good. (e) By Lord Kenyon, C. J., Rex v. Wilson and others' 8 T. R. 361, and in Taunton v. Costar, 7 T. R. 431. The same learned judge said, " If the landlord had entered with a strong hand to dispossess the tenant by force [after the expiration of his term] he might have been indicted for a forcible entry," and see Turner v. Meymot, 1 Bing. 158, 7 Moor. 574. Court cannot intend that they had any title." (f) There seems now to be no doubt that a party may be guilty of a forcible entry by violently, and with force, entering into that to which he has a legal title. (g) statutes. Whatever may be the true doctrine upon this subject at common Offence by 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. shall enter into ands, &c. with strong hand. 15 R. 2, c. 2, On complaint of forcible entry, justices may commit until fine and ransom. the offender By the 5 R. 2, c. 8, none shall make entry into any lands and Statutes, 5 R. tenements but in cases where entry is given by the law; and in 2, c. 8. None such cases not with strong hand, nor with multitude of people, 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. The 15 R. 2, c. 2, goes further, and enacts, that on complaint of forcible entry into lands and tenements, or other possessions whatsoever, to the justices of peace or any of them, the justices or justice take sufficient power of the county, and go to the place 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 necessary. (h) The statute 8 H. 6, c. 9, enacts, that though the persons making 8 H. 6, c. 9. forcible entries be present or else departed before the coming of Justices may inquire as well (f)8 T. R. 364. (g) In Newton v. Harland, 1 M. & Gr. 644, the judges of the Court of Common Pleas seem to have been of opinion that a landlord who entered forcibly into the house of a tenant after the expiration of his term, would be guilty of a forcible entry, both at common law and under the statutes; and the only doubt was whether, supposing there was such a forcible entry upon a tenant after the expiration of the term, the possession thereby obtained was legal. Tindal, C. J., Bosanquet and Erskine, Js., holding that if the landlord, in making his entry upon the tenant, had been guilty of a breach of a positive statute, or of an offence against the common law, that such violation of the law in making the entry, caused the possession thereby gained to be VOL. I. illegal. Coltman, J., holding that although (h) Upon the imposing and levying the X of those that make forcible entries as of lands, &c. with force. the justices or justice, the same justices or justice, in some good town next to the tenements so entered, or in some other convenient those that hold place, according to their discretion, shall have authority to inquire, by the people of the same county, as well of them that make such forcible entries in lands and tenements as of them which hold the 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. (i) 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., 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. (j) And it is then provided, 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." (k) This statute does not extend to those who maintain possession after peaceable enjoyment for three years. 31 Eliz. c. 11. No restitution to be made if the party indicted hath been three years in quiet possession, and his estate not ended. Costs. Doubt upon the statutes whether lessee for years or copyholder This proviso is further enforced by the 31 Eliz. c. 11, which enacts, "that no restitution, upon any 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 Ric. 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. (7) In the construction of these statutes it has been holden, that if a le see for years or a copyholder be ousted, and the lessor or lord disscised, and such ouster, as well as disseisin, be found in an indictment of forcible entry, the Court may, in their discretion, (i) Sec. 3. (j) Sec. 6. (k) Sec. 7. (1) Rex v. Oakley, 4 B. & Ad. 307. See Rex v. Wilson, 1 A. & E. 627. Rex v. Wilson, 3 Ad. & E. 817, as to the form of such a conviction. could have award a restitution of the possession to such lessee or copyholder; ousted by the which was, by necessary consequence, a re-seisin of the freehold lessor or lord 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, c. 15. 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 of court roll, seems at least to be within the meaning, if not within the words, of the statute. (m) copy. 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. (n) The law upon these statutes respecting forcible entries and de- Construction. tainers 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. sons who may commit the offence. I. A man who breaks open the doors of his own dwelling-house, As to the peror 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.(0) 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 cir (m) 1 Hawk. P. C. c. 64, s. 17. (n) Id. ibid. s. 17, 18. (0) 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. |