any person be in it at the time or not, especially if it be a dwelling-house. 1 Hawk. c. 64, s. 26. So, wherever a man, either by his behaviour or speech, at the time of his entry, gives those who are in possession of the tenements he claims, just cause to fear that he will do them some bodily hurt if they will not give way to him: his entry is deemed forcible, whether he cause such terror by carrying with him such 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 making use of such speeches as plainly imply a purpose of using force against those who shall make any resistance; or the like. 1 Hawk. c. 64, s. 27. But no entry shall be deemed forcible, from any threat to spoil another's goods, or to destroy his cattle, or to do him any other damage which is not personal. Id. s. 28. So an entry into a house through a window, or by opening the door with a key, is not forcible. Id. s. 26. So, if one who pretends title to lands, barely go over them, in his way to church, or to market or for such like purpose, without doing any act which either expressly or impliedly amounts to a claim to such lands, he cannot be said to make an entry therein within the meaning of the statutes,. although he be accompanied at the time by a great number of attendants, or armed. Id. s. 20. Yet in such a case, if he make an actual claim, with any circumstances of force or terror, he seems to be guilty of a forcible entry within the stat. 5 Ric. 2, c. 7, whether his adversary actually quit the possession or not. Id. s. 21.

It may be necessary to mention, that a joint-tenant or tenant in common, may offend against the statutes, either by forcibly ejecting, or forcibly holding out his companion; for although the entry of such a tenant be lawful, so that no action of trespass will lie against him for it, yet the lawfulness of his entry in no way excuses the violence, or lessens the injury done to his companion; and therefore an indictment for a forcible entry into a moiety of a manor, &c. has been holden good. 1 Hawk. c. 64, s. 33.

All who accompany the person making a forcible entry, shall be deemed equally guilty, whether they actually enter upon the lands or not. 1 Hawk. c. 64, s. 22. But a man who barely agrees to a forcible entry, already made to his use, without his knowledge or privity, is not guilty, for he in no way concurred in or promoted the force. Id. s. 24.

3. The expulsion. This, however, is only necessary, to entitle the prosecutor to restitution; the offence of the forcible entry is complete, by the entry and force, although the prosecutor may not have been expelled.

As to restitution, see 1 Hawk. c. 64, s. 45–66.

20. Indictment against a Poacher in the night time, for Assaulting a Game-keeper.

Berkshire to wit: The jurors for our Lord the King upon their oath present, that A. B. late of the parish of in the county of Berks aforesaid, labourer, before the committing of the assault hereinafter mentioned, to wit, on the first day of September, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, about the hour of eleven in the night of the same day, at the parish aforesaid in the county aforesaid, did, by night as aforesaid, unlawfully enter certain inclosed land of one C. D. there situate, and was then and there unlawfully in the said land, with a certain gun, for the purpose then and there of taking and destroying game; and he the said A. B. then and there, upon the said land, in the night time as aforesaid, with the gun aforesaid, for the purpose aforesaid, was found by one E. F., which said E. F. was then and there the servant ["game-keeper or servant"] of the said C. D., and had then and there lawful authority to seize and apprehend the said A. B.; and that [*the said A. B. then and there, from the land aforesaid, escaped into a certain close there situate, and the said E. F. then and there pursued him the said A. B. into the said last-mentioned close, for the purpose of seizing and apprehending him the said A. B. as aforesaid, he the said E. F., as such servant of the said C. D. as aforesaid, having then and there lawful right so to do, as aforesaid; and that*] the said E. F., being then and there about to seize and apprehend the said A. B. for the offence aforesaid, he the said A. B., with the gun aforesaid, any gun, cross bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever,"] which he the said A. B. in both his hands then and there had and held, did then and there unlawfully assault and beat, and offer violence towards the said E. F. [“ assault or offer violence towards,”] he the said E. F. then and there being lawfully authorized to seize and apprehend the said A. B.: against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. You may omit the words between the asterisks, if not required or sustained by the evidence. Add another count, stating the land to be" certain inclosed land then in the occupation of the said C. D. there situate." In R. v. Finucane & Williams, 5 Car. & P. 551, J. Parke, J. held that this count might be joined with one on the 9th section of the same statute, (9 G. 4, c. 69,) against three or more persons, for being in land at night, armed, for the purpose of taking or destroying game.

Misdemeanor: transportation for 7 years, or imprisonment and hard labour, for not more than 2 years. 9 G. 4, c. 69, s. 2.

Evidence.

To maintain this indictment, the prosecutor must prove:

1. That the prisoner entered certain land in the parish, either belonging to C. D. or in his occupation, as stated in the indictment. It is better not to mention the name of the land, in order to avoid the risk of variance. Where the indictment was for entering a certain wood called "Old Walk," belonging to and in the occupation of the Earl of Waldegrave, in the night time, armed, &c. with intent to destroy, take, and kill game; and in evidence it appeared that the wood was called "Long Walk," and was never known as "Old Walk :" the judges held the variance to be fatal. R. v. Owen & Prickett, R. & M. 118. So, a variance in the parish, or any other matter of local description, will be equally fatal.

2. That it was in the night time, that is to say, between the expiration of the first hour after sun set, and the beginning of the last hour before sun rise. See 9 G. 4, c. 69, s. 12. A variance between the hour stated, and that proved, will be immaterial, provided the time proved be within the hours now mentioned.

3. That he was then armed with a gun or other instrument, as stated in the indictment.

4. That he was there, for the purpose of taking or destroying game. This purpose is proved, by proving acts of the prisoner, or other circumstances, from which the jury may fairly presume it. And it seems, the intent must have been, to take or destroy game in that particular place in which the prisoner is proved to have been. Upon an indictment on the repealed statute, 57 G. 3, c. 90, for having entered a certain close situate, &c. in the Occupation of Thomas Quaife, with intent then and there to destroy, take, and kill game, &c, it appeared that the prisoner was taken in the close in question, in the night time, armed with a gun, and having two pheasants in his pockets; he was coming in a direction from a wood which was a preserve for game, and going towards two other woods which were also preserves, but the close in which he was taken was not a preserve the judge left it to the jury to say, whether the defendant, when taken, was returning home, or still in pursuit of game; and if the latter, whether his purpose was to kill game in the close mentioned in the indictment; the jury found that the prisoner was still in pursuit of game at the time he was taken, but they could not say whether in the close or elsewhere: the prisoner being convicted, the judges held the conviction to be wrong; because the entry with intent to kill game, being confined by the indictment

to the close therein specified, the intent should have been proved as to that particular close. R. v. Thomas Burham, Ry. & M. 151. and see R. v. Capewell & Pegg, 5 Cur. & P. 549.

5. That the prisoner was found there, in the actual commission of the offence. This it seems is necessary, in order to give the game-keeper or servant authority to seize or apprehend the prisoner; and it is only in cases where such game-keeper or servant derives such authority from the statute, that an assault upon him is punishable under this section. Upon the repealed statute 57 G. 3, c. 90, which, however, was somewhat differently worded from this section, a prisoner being indicted for having entered a wood called Kingshoe Spinney, with intent illegally to destroy game, and being found in the said wood in the night, armed, &c.; and the second count charging that having entered into the said wood with intent, &c. he was found in a certain close, to wit, Kinshoe close: it appeared that the prisoner was not seen in the wood; he was seen in a close adjoining it; but shortly before he was seen, shots were heard and the flashes seen in the wood: the prisoner being found guilty, it was reserved for the opinion of the judges, whether it was necessary to prove that the prisoner was seen in the place where the indictment stated him to have been found; and the judges held that as there was evidence to satisfy the jury that the prisoner had been in the wood armed, or one of the party who had been so, it was sufficient. R. v. Charles Worker, Ry. & M. 165. Whether the judges would be of the same opinion upon this section, may perhaps be doubted.

6. That the prisoner escaped, and was pursued by E. F. into the close or place to which he escaped; this, if necessarily stated, (that is to say, if the assault were not in the land which the prisoner is stated to have entered for the purpose of taking or destroying game,) must be proved as stated.

7. That E. F. was then the game-keeper or servant of C. D., the owner or occupier of the land, as stated in the indictment.

8. The assault, as stated. That E. F. was at that time about to seize or apprehend the prisoner, is not necessary perhaps to be stated or proved; but if such were the fact, and that it can be proved, it is better to state it in the indictment.

21. Keeping a Disorderly House.

By stat. 25 G. 2, c. 36, s. 5, in order to encourage prosecutions against persons keeping bawdy-houses, gaming-houses, or other disorderly houses, it is enacted, that if any two inhabitants

of any parish or place, paying scot and bearing lot therein, do give notice in writing to any constable, (or other peace officer of the like nature, where there is no constable,) of such parish or place, of any person keeping a bawdy-house, gaming-house, or any other disorderly house, in such parish or place, the constable or such officer as aforesaid, so receiving such notice, shall forthwith go with such inhabitant to one of His Majesty's Justices of the Peace of the county, city, riding, division or liberty in which such parish or place does lie; and shall (upon such inhabitants making oath before such justice that they do believe the contents of such notice to be true, and entering into recognizance in the penal sum of £20 each, to give or produce material evidence against such person for such offence,) enter into a recognizance in the penal sum of £30, to prosecute with effect such person for such offence at the next General or Quarter Session of the Peace, or at the next Assizes to be holden for the county in which such parish or place does lie, as to the said justice shall seem meet; and such constable or other officer shall be allowed all the reasonable expenses of such prosecution, to be ascertained by any two justices of the peace of the county, city, riding, division or liberty, where the offence shall be committed, and shall be paid the same by the overseers of the poor of such parish or place; and in case such person shall be convicted of such offence, the overseers of the poor of such parish or place shall forthwith pay the sum of £10 to each of such inhabitants; and in case such overseers shall neglect or refuse to pay to such constable or other officer such expenses of the prosecution as aforesaid, or shall neglect or refuse to pay upon demand the said sums of £10 and £10, such overseers and each of them shall forfeit to the person entitled to the same double the sum so refused or neglected to be paid. See the form of the Notice, 3 Burn, D. & W. 330; affidavit of the truth thereof, Id.; recognizance to give material evidence, Id. ; recognizance of constable to prosecute, Id. 331; allowance of constable's expenses, Id. 332.

By stat. 58 G. 3, c. 70, s. 7, a copy of such notice shall also be served on or left at the places of abode of the overseers of the poor of such parish or place, or one of them, and such overseers or overseer of the poor shall be summoned or have reasonable notice to attend before such justice of the peace, before whom such constable shall have notice to attend; and if such overseers or overseer of the poor shall then and there enter into such recognizance to prosecute such offender as the constable is in and by the said Act (25 G. 2, c. 36, s. 5,) required to enter into, then it shall not be necessary for, nor shall such constable be required to enter into such recognizance; but if such overseers or overseer of the poor shall neglect to attend such justice on having such notice, or shall attend and shall decline to enter