was sufficient to support an indictment for a forcible entry, in the presence of the husband, and a forcible detainer.1

An entry "with strong hand," or "with multitude of people," is the offence described in the statute. It is not necessary, however, when the latter alternative is relied on that the entry should be committed by a very great number of people; three persons, following the analogy of riot, have been held enough to sustain the averment of "multitude." And even where the entry is lawful, it must not be made with a strong hand, or with a number of assailants; where it is not lawful, it must not be made at all.3

Force may

§ 1094. An entry by breaking the doors or windows, etc., whether any person be in the house or not, especially. be inferred if it be a dwelling-house, is a forcible entry within the from facts. statute. So an entry, where personal violence is done to the prosecutor, or any of his family or servants, or to any person or persons keeping the possession for him; or even where it is accompanied with such threats of personal violence (either actual or to be implied from the actions of the defendant, or from his being unusually armed or attended, or the like) as are likely to intimidate the prosecutor or his family, and to deter them from defending their possessions, is a forcible entry within the statute. The issue is, Was there force sufficient to alarm, so as to coerce surrender of possession, or to provoke a breach of the peace ?7

§ 1095. It has been ruled that as possession of a dwelling-house Rule does implies possession of its appurtenances, it is not indictable not apply for a person who has peaceably and legally obtained possession of a dwelling-house forcibly to break open an outhouse has house appertaining thereto.8

to outhouses when

been

peaceably entered.

But when the goods of the defendant in an execution are in the house of a third person, or in a smoke-house

1 State v. Caldwell, 2 Jones, (N. C.) 468, 1855.

2 State v. Simpson, 1 Dev. 504, 1828. 3 Burt v. State, 2 Const. (S. C.) 489, 1814.

not require that the party in possession should make any resistance' in the face of a display of force when resistance would be useless. Lissner v. State, 84 Ga. 669, 1890.

7 R. v. Smith, 5 C. & P. 201; 1 M. & R. 155; Com. v. Shattuck, 4 Cush. 141, 1849; Com. v. Rees, 2 Brewst. 564, 1869; State v. Pollok, 4 Ired. 305, 1844; Lissner v. State, 84 Ga. 669, 1890.

State v. Pridgen, 8 Ired. 84, 1847.

within the curtilage of said third person, a demand for admittance by the officer holding the execution, and a refusal upon the part of the person holding the property, are necessary to justify the officer in breaking the door, and entering either house or smokehouse.1

Entry by

§ 1096. An entry by an open window, or by opening the door with a key, or by mere trick or artifice, such as by enticing the owner out, and then shutting the door upon trick not him, or the like, without further violence, or if effected by threats to destroy the owner's goods or cattle merely, and not by threats of personal violence,3 is not deemed a forcible entry.

"forcible."

entry may

be followed by forcible

§ 1097. A peaceable entry may be followed, as will be seen, by a forcible detainer. Thus, where an intruder, having Peaceable entered peaceably, said to the former possessor, "It will not be well for you, if you ever come upon the premises again by day or night," it was left to the jury whether detainer. this was a threat of personal violence, and so a forcible detainer within the statute: they having found it was, a conviction was held proper. And keeping forcibly a lessee out of possession to which he is entitled may be a forcible detainer." But a tenant entitled to possession may defend it by force adequate to the purpose.7

continuance by

§ 1098. Where a party having a right, enters or makes claim, and the other party afterward continues to hold posses- Forcible sion by force, this is considered a forcible entry in the party so holding; because his estate is defeated by the entry or claim, and his continuance in possession is deemed forcible a new entry.

wrongful

Occupier is

entry.

When

there is right of

entry, vio

lence is es

§ 1099. Where the party entering has in fact no right of entry, all persons in his company, as well those who do not use violence as those who do, are equally guilty; but if he have a right of entry, then those only who use or offence. threaten violence, or who actually abet those who do, are guilty.

1

1832.

sential to

Douglass v. State, 6 Yerg. 525, 1869; Com. v. Haxton, Lewis C. L. 282. Com. v. Knarr, 135 Pa. 35, 1890. So

2 Com. Dig. Forc. Ent. & D. 3; 1 may a landlord. Winn v. State, 55 Hawk. c. 28, s. 26. Ark. 360, 1892. See, also, Richter v.

4 Infra, 1102, 1103.

'See Parrott v. Hodgson, 46 Ill. Cordes, (Mich.) 58 N. W. Rep. 1110, App. 230, 1891. 1894. 8 1 Hawk. c. 28, ss. 23, 34. Supra, People v. Rickert, 8 Cow. 226, 1087; infra, 1101. See U. S. v. Griffin, 11 Wash. Law Rep. 642, 1864. 93 Bac. Abr. Forc. Ent. (B.).

1828.

* Com. v. Wisner, 8 Phila. 612, 1871. 7 Com. v. McNeile, 8 Phila. 438,

Tenant at

by force.

112

§ 1100. A landlord has no right to expel by violence even a tenant at will, and, as will be noticed more fully under will cannot another head, should he attempt it, he will be criminally beexpelled responsible for the intrusion. "If the landlord," said Lord Kenyon, "had entered with a strong hand to dispossess the tenant with force (after the expiration of the term), he might have been indicted for a forcible entry.' In a case immediately succeeding, the same judge declared it to be part of the law of the land that no man should assert his title with violence. It is true, that on a subsequent day of the term he stated that the court desired that the grounds of their opinion might be understood, so that it should not be considered a precedent for other cases where it did not apply. He then proceeded: "Perhaps some doubt may hereafter arise respecting what Mr. Sergeant 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 the question shall arise, all that we wish to say is, that our opinion in this case leaves that question untouched." "But

1

Supra, & 97 a. 4 Bl. Com. 148; cutor's opposition, and furnished with Com. v. Kensey, 2 Pars. 401. See, a hatchet and other weapons, after a also, Turner v. Weymott, 7 Moore, struggle which caused a disorderly 574; 1 Bing. 158; Taylor v. Cole, 3 crowd to assemble, ejected the proseT. R. 292; Newton v. Harland, 1 Man. cutor and his servants. From the & Gr. 644; 1 Scott N. R. 474; Bed- commencement of the proceedings till dall v. Maitland, 44 L. T. (N. S.) 248; the conclusion, a female servant of Sampson v. Henry, 13 Pick. 36, 1832; the prosecutor's was in the kitchen: Langdon v. Potter, 3 Mass. 215, 1807; it was held, assuming the title of the though see Overdeer v. Lewis, 1 W. & prosecutor to have been bad, and that S. 90, 1840; State v. Elliott, 11 N. H. the defendants had acted by the order 540, 1841. V., having been in pos- of those who had a good title to the session of a house from May to Octo- premises, that the evidence was suffiber, the defendants called there, and cient to support a conviction of the insisting that V. had no title, pro- defendants for a forcible entry and ceeded to take the keys out of the riot. R. v. Studd, 14 W. R. 806; 14 room doors. Upon their doing so, V. L. T. (N. S.) 633—C. C. R. Infra, gave them into custody for stealing 1105. Cf. article in 22 Am. Law the keys, but the magistrate refused Reg. 718. to detain them. They then returned to the house, and having procured a sledge-hammer, forced the inner door of the hall, and some having entered that way, and some by a staircase window, they overpowered the prose

A landlord who re-enters for condition broken may not use force to effect the re-entry. Winn v. State, 55 Ark. 360, 1892.

2 Taunton v. Costar, 7 T. R. 431. 3 R. v. Wilson, 8 T. R. 357.

2

now," says Sir William Russell," there is no doubt that in England a party is indictable for forcible entry into premises in which he has a legal title." While this is the case, by a curious anomaly in the law three out of six judges in the Common Pleas, in a case already cited, held that the landlord was not responsible for a trespass, at the tenant's suit for redressing the latter, even though such force was used as to subject the landlord to a criminal prosecution. If this distinction be recognized, there can be no difficulty in reconciling with the law of forcible entry the doctrine of the Supreme Court of Pennsylvania, that when a lease expires, the landlord may forcibly dispossess by night or by day the tenant whose lease has expired, with this limitation only, that he should use no greater force than might be necessary, and do no wanton damage. The plaintiff in such a case is "entitled to damages only for an injury he had suffered from unnecessary violence to his property." Still, on the distinction above stated, the defendant is liable to a criminal prosecution, if he enter with violence or with a multitude of persons, so as to constitute or provoke a breach of the peace. The reason of the distinction is this: The dispossessed party cannot complain in a civil suit of his dispossession, unless a personal assault was made on him with undue force, as he had no right to remain on the premises. And though there may have been a riot, he cannot sue civilly for this, which is an offence, not against him, but against the public. The only remedy is a criminal prosecution.5

Owner

may forci

§ 1101. Yet where the prosecutor is a mere intruder, without color of title, past or present, and has entered by fraud or violence, or on a mere scrambling title, the owner may forcibly enter. This has been seen to be the case when the possession is held by one claiming mere custody under the owner, but refusing entrance to the owner. It was,

1 1 Russ. on Cr. (9th Am. ed.) 421. Newton v. Harland, 1 M. & G.

644.

Overdeer v. Lewis, 1 W. & S. 90, 1840. S. P., Rich v. Keyser, 54 Pa. 86, 1867. As to tenant's right to dispossess lessor, see Com. v. McNeile, 8 Phila. 438, 1869.

bly enter against a mere in

truder.

supra, 297-8. See Aldrich v. Wright, 53 N. H. 398, 1873.

6 Com. v. Keeper of Prison, 1 Ashm. 140, 1828; Com. v. Conway, 1 Brewst. 509, 1868. See infra, ? 1104. That it makes no difference that the owner was temporarily absent, having left the house in charge of a member of

* Com. v. Kensey, 2 Pars. 401, his family, see State v. Shepard, 82

1846.

5 That at common law the owner may take his property by force, see

N. C. 614, 1880.

7

Supra, 1087. State v. Curtis, 4 Dev. & Bat. 222, 1839.

therefore, rightly ruled by Lord Campbell, C. J., that a person having no possession or title to premises, but fraudulently pretending to have such title, and so allowed by the servant of the true owner to enter, does not acquire actual possession, but may be expelled by force.

Legal right to

§ 1102. For the purpose of obtaining restitution, it is necessary to prove that the prosecutor is still kept out of possession, and it is plain that this right of possession on the part of the prosecutor must be legal, and that if he has no right to enter he cannot maintain a forcible detainer.3

enter necessary to writ of restitution.

Forcible detainer to

§ 1103. As has already been incidentally observed, there may be a forcible detainer, though the entry is peaceable.* It is sufficient if it appear from the indictment that the party be inferred aggrieved had title, and was forcibly kept out of possession. But where the entry was peaceable and the continued possession lawful, forcible detainer cannot be main

from

facts.

tained.

The same circumstances evincing violence which will make an entry forcible will make a detainer forcible also; and whoever keeps in the house an unusual number of people, or unusual weapons, in a way indicating violence, or threatens in such connection to do some bodily hurt to the former possessor if he dare return, may be adjudged guilty of a forcible detainer, though no attempt be made to re-enter. But merely refusing to go out of the house, or denying possession, by a tenant at will, to a lessor, is not a forcible holding within the meaning of the statutes.

As will presently be more fully seen, the offences are divisible.10 § 1104. Under 5 Ric. II. the prosecutor must aver a freehold and under 21 Jac. I. a leasehold; but, it seems, proof that he was in actual occupation of the premises, or in the reception of