I. CHARACTER OF OFFENCE.

of another

from his lands and

§ 1083. WHEN a man violently takes and keeps possession of any lands and tenements occupied by another, with menaces, force, and arms, and without the authority of law, he may be indicted at common law, for forcible entry and detainer. To enter, Forcible with intent to keep possession, constitutes the offence of exclusion forcible entry. Of this there may be a conviction without proving a forcible detainer. A forcible detainer is where a party, "having wrongfully entered upon any fence at lands or tenements, detains such lands or tenements in common a manner which would render an entry upon them for the purpose of taking possession forcible." In many of the States, through the substitution of statutory remedies giving the injured party summary relief by recourse to a civil tribunal, criminal procedure in such cases has fallen into disuse.3

tenements is an of

law.

§ 1084. The following English statutes have been in several States held to be part of the common law :

5 RIc. II. st. 1, c. 8.

Modifica

tion of law by

common

statutes.

Entry with Strong Hand and Multitude of People."And also the king defendeth, 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 convicted, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will."

1893.

14 Bl. Com. 148; Russ. on Cr. (9th Anthony, 4 Johns. 198, 1809; People Am. ed.) 421; Henderson's Case, 8 v. Van Nostrand, 9 Wend. 50, 1832; Gratt. 708, 1852. See State v. Laney, Lowman v. Sprague, 73 Hun, 408, 87 N. C. 535, 1882. That the aggressor remained in possession is admissible in evidence to show his purpose in making the entry and that he made his entry effectual, although he is not charged with forcible detainer. Lissner v. State, 84 Ga. 669, 1890.

The statutes of both Pennyslvania and Virginia are simply declaratory of the common law, as modified by 5 Ric. II. st. 1, c. 8, and 21 Jac. I. c. 15, as will hereafter appear in the adjudication given to them by the courts. Com. v. Miller, 42 Leg. Int. 247, 1884. See 2 Pa. L. J. 391, for a learned article on the law as obtaining in Pennsylvania.

By stat. 8 Hen. VI. c. 9, this stat

21 JAC. I. c. 15.

Restitution to be Awarded.-" That such judges, justices, or justices of the peace, as by reason of any act or acts of parliament now in force are authorized and enabled, upon inquiry, to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon with force, or from them withholden by force, shall by reason of this present act have the like and same authority and ability from henceforth, upon indictment of such forcible entries or forcible withholdings 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 tenements by them so holden, which shall be entered upon by force, or holden from them by force."

Gist of of

§ 1085. The violent and forcible taking or keeping of another man's property is, apart from the operation of particular fence is the statutes, a breach of the public peace, punishable in a violence. criminal court by indictment. The gist of the offence is the violence, or threat of violence; and from the peculiar sanctity attached by the common law to every man's dwelling-house, violence offered to it is distinguished as a substantive offence, and punished with peculiar severity. Forcible entry and detainer, as an indictable offence, continues, therefore, to be punished in the courts even of those States where the injured party is furnished with the most summary civil remedies.2 Nor, notwithstanding occasional hesitation,3 can its continued common law efficiency be disputed. At common law, to support an indictment there must be a breach of the peace. But by the 5 Ric. II. st. 1, c. 8, and 21 Jac. I. c. 15, ute is extended to cases where the entry was peaceable but the detainer forcible; and restitution is given in such cases. Rob. Dig. 284. Both statutes are in force in Pennsylvania. Van Pool v. Com., 13 Pa. 391, 1850. But not in New Hampshire. State v. Morgan, 59 N. H. 322, 1879.

1879.

State v. Camp, 41 N. J. L. 306,

2 R. v. Wilson, 8 T. R. 357; Newton v. Harland, 1 M. & G. 644; Harding's Case, 1 Greenl. 22, 1820; Com. v. Taylor, 5 Binn. 277, 1812; State v. Mills, 2 Dev. 420, 1830; State v. Speirin, 1 Brev. 119, 1802.

3 Com. v. Toram, 5 Pa. 296, 1846; 2 Pars. 411.

* R. v. Wilson, 8 T. R. 357; R. v. Bake, 3 Burr. 1731; Com. v. Dudley, 10 Mass. 403, 1813; Henderson's Case,

By 15 Ric. II. c. 2, there is a summary power given to justices to convict on view. This as well as the preceding statutes is in force in Pennsylvania and Maryland. See Roberts's Digest; Van Pool v. Com., supra; 8 Gratt. 708, 1852. Kilty's Report, etc., 227-36.

the common law, as we have seen, received a modification, which, in many of the States, has been considered as a constituent part of the offence.1

offence requires less force than law, but either

common

§1086. There is a distinction to be observed between forcible entry, etc., as it existed and still exists at common law, Statutory and forcible entry, etc., under the above-given statutes. In the first place, more force is necessary to constitute the former offence than the latter; in the second place, in an indictment for the latter offence it is necessary to set forth either a freehold or a leasehold in the prosecu- leasehold tor, while in the former, an averment of mere possession is sufficient.3 Keeping these distinctions in mind, the construction given by the courts to the statutory offence will apply with equal force to the offence at common law.

freehold or

title.

Any person forcibly putting out

another

from pos

session

may be

indicted.

§ 1087. Any one who forcibly puts out and keeps out another from possession may be indicted for forcible entry and detainer. Hence, as will hereafter be observed, a landlord who violently dispossesses a tenant whose lease has expired may be guilty of forcible entry." But where his mansion is detained by one having a bare charge, a man may break open the doors and forcibly enter without violating the statutes. And though this does not hold good when unnecessary force is used, yet, if there be no such force, a person who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry.?

Wife may

indicted as

§ 1088. It seems that though a woman cannot be be so mulcted in damages for a trespass on her husband's against her property, she may, "if she comes with a strong hand," husband.

1 Harding's Case, 1 Greenl. 22, 1820; Roberts's Digest, 283.

* R. v. Bake, 3 Burr. 1731; Com. v. Dudley, 10 Mass. 403, 1852; U. S. v. Griffin, 11 Wash. Law Rep. 642, 1864; and cases cited infra, ?? 1100, 1101.

Harding's Case, 1 Greenl. 22, 1820; State v. Speirin, 1 Brev. 119, 1802. Infra, 1111.

See Woodside v. Ridgeway, 126 Mass. 292, 1879; Newton v. Doyle, 38 Mich. 645, 1878; Campbell v. Coonradt, 22 Kans. 704, 1879; U. S. v. Griffin, 11 Wash. Law Rep. 642, 1864. One whose complete possession has

been ended by the wrongful entry of another, even though such entry was made under claim of a paramount title, has sufficient possession to maintain an action for the forcible detention of his property. Brown v. Feagins, 37 Nebr. 256, 1893.

5 See Morris v. Bowles, 1 Dana, 97, 1833.

6 Russ. on Cr. (9th Am. ed.) 421 et seq. Mr. Greaves, in a note, holds this statement of Sir W. Russell to be erroneous. See infra, 1097-1100. Steph. Dig. Crim. Law, art. 79.

7

"under circumstances of violence amounting to a breach of the public peace," be convicted of a forcible entry.'

§ 1089. A joint tenant, or tenant in common, may offend against the statutes by forcibly ejecting or holding out his companion.2

So as to tenant in

common

ejecting his companion.

Thus, where one of a board of trustees forcibly put certain persons in possession of a church, which was closed by order of a majority of the board of trustees, it was held those persons were guilty of a forcible entry and detainer.3 § 1090. An indictment will lie against a third person who forcibly intrudes himself on land, after judgment against So as to third pera former intruder, and the sheriff, who holds title under son dispossessing offi- the writ of restitution, may turn him out of possescer of law. sion.1

§ 1091. As a general rule, an indictment for forcible entry lies to redress an expulsion from any real estate, Real estate, whether corporeal or incorporeal; and it has been said or incorpo- that the process can be maintained against any one,

corporeal

real, may

be thus protected.

whether a terre-tenant or a stranger, who should forcibly disturb a landlord in the enjoyment of his rent, or a commoner in the use of his common. But a way, ferry, or similar easement, is not the subject of this process.

A forcible entry may be made on land, whether woodland or otherwise, within the bounds of a tract possessed by another, although the whole tract be not inclosed by a fence or cultivated.8

§ 1092. Distinct from forcible entry and detainer as a statutory To forcibly offence, yet bearing close relations to forcible entry and trespass on detainer at common law, stands forcible trespass on perpersonalty force is sonalty-which is "the taking by force the personal property of another in his presence." It is distinguishable, however, from forcible entry and detainer at common law by two features: (1) The latter must be directed against real interests exclusively, while the forcible trespass on personalty has for its

essential.

1 R. v. Smyth, 5 C. & P. 201; 1 M. et seq. Compare, as qualifying text, & Rob. 155. authorities cited infra,

21 Russ. on Cr. (9th Am. ed.) 425; Com. v. Oliver, 2 Pars. 420, 1849.

3 Com. v. Oliver, 2 Pars. 420, 1849. State v. Gilbert, 2 Bay, 355,

1802.

5 1 Russ. on Cr. (9th Am. ed.) 421

1103.

object chattels of all classes; and (2) Forcible entry and detainer at common law does not necessarily involve violence offered a person actually in possession, while such violence to such person is necessary to constitute forcible trespass to personalty as a common law offence. It is virtually but an aggravated assault, though from the peculiar texture of the offence, the word assault need not appear in the indictment.1

To forcible

entry force exceeding trespass is

necessary.

§ 1093. On an indictment at common law for forcible entry, it is necessary to prove that the defendant entered with such force and violence as to exceed a bare trespass, and to give reasonable grounds for terror; but where a party entering on land in possession of another, either by his behavior or speech, gives those who are in possession just cause to fear that he will do them some bodily harm if they do not give way to him, his entry is deemed forcible, whether he causes the terror by carrying with him an unusual number of attendants, or by arming himself in such a manner as plainly to intimate a design to back his pretentions by force, or by actually threatening to kill, maim, or beat those who continue in possession, or by making use of expressions plainly implying a purpose of using force against those who make resistance.3

A strong man went to the house of another, in his absence, and remained there against the will of the wife, using insulting language; the husband returned and ordered the intruder out, but he refused to go for some time, and then went into the yard, with a a club in his hand, threatening and cursing. It was held, that this

1 State v. Mills, 2 Dev. 420, 1830; State v. Phipps, 10 Ired. 17, 1848; State v. McDowell, 1 Hawks, 449, 1821. See infra, 1112. State v. Laney, 87 N. C. 535, 1882. See State v. Porter, 25 W. Va. 685, 1885.

2 R. v. Smyth, 5 C. & P. 201; R. v. Deacon, Ry. & M. 27; Com. v. Keeper of Prison, 1 Ashm. 140, 1828; Com. v. Conway, 1 Brewst. 509, 1868; Com. v. Rees, 2 Ibid. 564, 1869; Thompson v. Com., 116 Pa. 155, 1887; and cases cited at close of this note. That any force in a dwelling-house likely to produce terror may constitute the offence, see Harding's Case, 1 Greenl.

22, 1820; Com. v. Taylor, 5 Binn. 277, 1812; State v. Pollok, 4 Ired. 305, 1844; State v. Ross, 4 Jones, (N. C.) 315, 1857.

31 Russ. on Cr. (9th Am. ed.) 426; Pennsylvania v. Robison, Addis. 14, 1791; Resp. v. Devore, 1 Yeates, 501, 1795; State v. Pollok, 4 Ired. 305, 1844; Bennett v. State, 1 Rice Dig. 340; State v. Cargill, 2 Brev. 445, 1810; State v. Talbot, 97 N. C. 494, 1887; Parrott v. Hodgson, 46 Ill. App. 230, 1891; Coverdale v. Curry, 48 Ill. App. 213, 1892; Wells v. Darby, 13 Mont. 504, 1893. Infra, 1099.