Gambar halaman
PDF
ePub

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

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

$ 1094. An entry by breaking the doors or windows, etc., Force may,

whether any person be in the house or not, especially, be inferred if it be a dwelling-house, is a forcible entry within the

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 ??

$ 1095. It has been ruled that as possession of a dwelling-house Rule does implies possession of its appurtenances, it is not indictable pot apply for a person who has peaceably and legally obtained pos

session of a dwelling-house forcibly to break open an outhouse has house appertaining thereto.8

But when the goods of the defendant in an execution peaceably

are in the house of a third person, or in a smoke-house 1 State v. Caldwell, 2 Jones, (N. C.) not require that the party in posses468, 1855.

sion should make any resistance in ? State v. Simpson, 1 Dev. 504, 1828. the face of a display of force when re

3 Burt v. State, 2 Const. (S. C.) 489, sistance would be useless. Lissner v. 1814.

State, 84 Ga. 669, 1890. 4 See 1 Hawk. c. 28, s. 26.

? R. v. Smith, 5 C. & P. 201; 1 M. 5 Ibid.

& R. 155; Com. v. Shattuck, 4 Cush. 6 1 Hawk. c. 28, ss. 20, 21, 27 ; Mil- 141, 1849; Com. v. Rees, 2 Brewst. ner v. Maclean, 2 C. & P. 17; Com. v. 564, 1869; State v. Pollok, 4 Ired. 305, Shattuck, 4 Cush. 141, 1849; Com. v. 1844; Lissner v. State, 84 Ga. 669, Dudley, 10 Mass. 403, 1813; State v. 1890. Pollok, 4 Ired. 305, 1844; Strong v. 8 State v. Pridgen, 8 Ired. 84, 1847. State, 105 Ind. 1, 1886. The law does

houses when

been

entered.

"forcible.''

be fol

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.

$ 1096. An entry by an open window, or by opening the door with a key, or by mere trick or artifice, such as by

Entry 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, is not deemed a forcible entry.

$ 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

entry may not be well for you, if you ever come upon the premises lowed by 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.?

$ 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 continuparty so holding; because his estate is defeated by the wrongful

occupier is entry or claim, and his continuance in possession is deemed forcible a new entry.

$ 1099. Where the party entering has in fact no right there is of entry, all persons in his company, as well those who do

right of

entry, vionot use violence as those who do, are equally guilty; but lence is esif he have a right of entry, then those only who use or offence. threaten violence, or who actually abet those who do, are guilty.

entry.
When

1

Douglass v. State, 6 Yerg. 525, 1869; Com. v. Haxton, Lewis C. L. 282. 1832.

Com. v. Knarr, 135 Pa. 35, 1890. So ? 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. * See Parrott v. Hodgson, 46 Ill. Cordes, (Mich.) 58 N. W. Rep. 1110, App. 230, 1891.

1894. * Infra, 82 1102, 1103.

8 1 Hawk. c. 28, ss. 23, 34. Supra, * People v. Rickert, 8 Cow. 226, 2 1087; infra, & 1101. See U. S. v. 1828.

Griffin, 11 Wash. Law Rep. 642, 1864. • Com. v. Wisner, 8 Phila. 612,1871. 9 3 Bac. Abr. Forc. Ent. (B.). ? Com. v. McNeile, 8 Phila. 438,

[ocr errors]

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 heexpelled responsible for the intrusion. “If the landlord,” said by force.

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.3 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

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 Å 1105. Cf. article in 22 Am. Law the keys, but the magistrate refused Reg. 718. to detain them. They then returned A landlord who re-enters for conto the house, and having procured a dition broken may not use force to sledge-hammer, forced the inner door effect the re-entry. Winn v. State, 55 of the hall, and some having entered Ark. 360, 1892. that way, and some by a staircase 2 Taunton v. Costar, 7 T. R. 431. window, they overpowered the prose- 3 R. v. Wilson, 8 T. R. 357.

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."

$ 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 may forciforcibly enter. This has been seen to be the case when bly enter the possession is held by one claiming mere custody under mere inthe owner, but refusing entrance to the owner. It was,

Owner

against a

truder.

1 1 Russ. on Cr. (9th Am. ed.) 421. supra, 22 97–8. See Aldrich v. Wright,

: Newton v. Harland, 1 M. & G. 53 N. H. 398, 1873. 64.

6 Com. v. Keeper of Prison, 1 Ashm. 3 Overdeer v. Lewis, 1 W. & S. 90, 140, 1828; Com. v. Conway, 1 Brewst. 1840. S. P., Rich v. Keyser, 54 Pa. 509, 1868. See infra, & 1104. That it 86, 1867. As to tenant's right to dis- makes no difference that the owner possess lessor, see Com. v. McNeile, 8 was temporarily absent, having left Phila. 438, 1869.

the house in charge of a member of * Com. v. Kensey, 2 Pars. 401, his family, see State v. Shepard, 82 1846.

N. C. 614, 1880. 5 That at common law the owner Supra, & 1087. State v. Curtis, 4 may take his property by force, see Dev. & Bat, 222, 1839.

7

enter necessary

restitution.

Forcible detainer to

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. $ 1102. For the purpose of obtaining restitution, it is necessary

to prove that the prosecutor is still kept out of possesLegal

sion, and it is plain that this right of possession on right to

the part of the prosecutor must be legal, and that if he to writ of has no right to enter he cannot maintain a forcible de

tainer 3 $ 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 posses

sion. But where the entry was peaceable and the con

tinued possession lawful, forcible detainer cannot be maintained.

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 les sor, 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

from facts.

1 Collins v. Thomas, 1 F. & F. 416. on its face, issued from a court of

2 1 Hawk. c. 28, s. 41; Burd v. Com., competent jurisdiction, though the 6 S. & R. 252, 1820.

issuing was unlawful. Vess v. State, 3 See infra, & 1111.

93 Ind. 211, 1883. * See Thomasson v. Wilson, 46 Ill. State v. Godsey, 13 Ired. 348, App. 398, 1892.

1852. 5 Com. v. Rogers, 1 S. & R. 124, Strong v. State, 105 Ind. 1, 1886. 1814; Com. v. Wisner, 8 Phila. 612, People v. Rickert, 8 Cow. 226, 1871.

1828, and cases cited supra, & 1097. Forcible detainer does not lie against 9 1 Hawk. c. 28, s. 30. a party holding under a writ regular 10 See infra, & 1110.

7

8

« SebelumnyaLanjutkan »