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necessary

the rents and profits, is sufficient evidence of seisin. At common law, however, no allegation beyond possession was neces- At comsary, when the object was only to obtain punishment for mon law the violent invasion of the prosecutor's rights, and of session is course mere possession was sufficient to support the

prose

to prosecucution. But a mere scrambling possession will not be tion. enough to sustain an indictment even at common law. Nor is surveying land, building cabins, and leaving them unoccupied, such possession as is necessary.*

$ 1105. As we have seen, the defendant cannot go into evidence to disprove the title of the complainant, or to establish his own, as the question is not one of civil right, but of public mischief. Even where a tenant holds over beyond the period fixed by his lease, and the landlord makes forcible entry for any purpose, though the tenant cannot maintain a trespass, quare clausum, the landlord cannot justify a personal injury committed on the tenant in such entry? If he attempt to dispossess his tenant by undue violence, he is criminally responsible for the consequences, , and may be punished for the breach of the peace, though he is at the time merely asserting his civil rights.8

It must be remembered, however, that the possession must be actual and not constructive. Two persons cannot be in possession of the same land at the same time (i. e., adversely); and whenever the unlawful entry of one with force necessarily dispossesses the other, an indictment for forcible entry may be maintained.'

Title notat issue.

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People v. Van Nostrand, 9 Wend. 1828; Resp. v. Shryber, 1 Dall. 68, 50, 1832.

1782 ; Bennett v. State, 1 Rice (S. C.) ? R. 1. Child, 2 Cox C. C. 102; Digest, 340; Vess v. State, 93 Ind. Harding's Case, 1 Greenl. 22, 1820; 211, 1883. But deeds under which a People v. Leonard, 11 Johns. 504, party claims may be read in evidence 1814; Com. v. Kensey, 2 Pars. 401, for the purpose of showing boundaries 1846; State v. Bennett, 4 Dev. & Bat. or extent of possession.

Griffin v. 43, 1839; State v. Speirin, 1 Brev. 119, Kirk, 47 Ill. App. 258, 1892. 1802. See Brown v. Feagins, 37 Nebr. Sampson v. Henry, 13 Pick. 36, 256, 1893.

1832; though see Overdeer v. Lewis, 3 See cases cited supra, X 1101. 1 W. & S. 90, 1840. Supra, % 1100.

Pennsylvania v. Waddle, Addis. 8 Taunton v. Costar, 7 T. R. 427; 40, 1792. See supra, & 1101.

Com. v. Kensey, 2 Pars. 401, 1846. • Dutton v. Tracy, 4 Conn. 79, 1821. See supra, & 1100. See Kimmel v. Frazer, 49 Ill. App. 9 Burt v. State, 2 Const. (S. C.) 489, 462, 1893.

1814. See Kimmel v. Frazer, 49 Ill. • People v. Rickert, 8 Cow. 226, App. 462, 1893. 1828; People v. Godfrey, 1 Hall, 240,

Prosecutor

$ 1106. The prosecutor is at common law not a witness to prove

anything more than the force used; and he is inadmissimay prove ble, therefore, to sustain an indictment for the purpose of

restitution. The wife, also, of the prosecutor is admissible to prove the force, but only the force. Of course, in States where interest does not disqualify, these rulings do not apply.

force.

II. INDICTMENT.3

be averred.

Indict

$ 1107. Greater force must be averred than is expressed ment must contain by vi et armis. The words, “and with strong hands," technical terms.

should not be omitted.5 § 1108. It is necessary, as has been stated, under the English

statutes, to aver either a leasehold or a freehold in the For common law prosecutor ;, though proof of actual possession is sufficient offence

to support the allegation in the indictment that the compossession only need plainant was possessed in fee simple. At common law,

as we have also noticed, mere possession is all that need be laid. But, as is elsewhere seen, an indictment stating a naked possession merely in the prosecutor, without laying any estate or interest in him, is not sufficient to authorize an award of restitution.' Such an allegation, however, will be sufficient to support an indictment for the forcible entry at common law as a breach of the peace; though it has been said that as a forcible detainer is not an offence at common law, an indictment for that offence should always aver the prosecutor's estate in the premises."

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1 R. v. Beavan, R. & M. (N. P.) The proof as to the application of 242; R. v. Williams, 4 M. & Ry. 471; force must correspond with the indict9 B. & C. 549; Resp. v. Shryber, 1 ment. Thus where an indictment Dall. 68, 1782; State v. Fellows, 2 laid the force against the seisin of A., Hayw. 340, 1804.

it was ruled that evidence was not 2 Resp. v. Shryber, 1 Dall. 68,1782. admissible of an entry on land leased

3 As to indictment, generally, see by A. and B. to C., and of force against Whart. Prec. 2489 et seq.

C. Resp. v. Sloane, 2 Yeates, 229, * R. v. Wilson, 8 T. R. 357. See 1797 ; Penn. v. Grier, 1 Smith's Laws, Harding's Case, 1 Greenl. 22, 1820; 3, 1700. And as to other cases of R. v. Bake, 3 Burr. 1731.

variance, see infra, & 1109. 5 Whart. Cr. Pl. & Pr. & 270; R. People v. Van Nostrand, 9 Wend. v. Baker, 11 Mod. 235; Com. v. Shat- 50, 1832. tuck, 4 Cush. 141, 1849; State v. Supra, & 1104 Whitfield, 8 Ired. 315, 1848.

9 Infra, % 1111. 6 Archb. Crim. Plead. 847. So in 10 Com. v. Kensey, 2 Pars. 401, 1846. New Hampshire. State v. Pearson, 2 11 Com. v. Toram, 2 Pars. 411, 1846. N. H. 550, 1823.

An indictment charging that A.

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Prem ises

An allegation in the indictment that the prosecutor was disseised necessarily implies a previous seisin.'

$ 1109. The indictment must describe the premises entered with the same particularity as in ejectment. Thus, an indictment of forcible entry into a messuage, tenement, and must be tract of land, without mentioning the number of acres, as in ejectwas held bad after conviction.2

Certainty to a reasonable intent is all that is required in the description.

described

ment.

was

peaceably possessed in his see Resp. v. Sloane, 2 Yeates, 229, demesne, as of fee,” of certain lands, 1797. " and continued so seised and pos- Where the words were “a certain sessed” until B. “therof disseised”

messuage with the appurtenances for him, and “him so disseised and ex. a term of years, in the district of pelled;" did keep out, etc., was held Spartanburg," it was adjudged that good on error; Fitch v. Remp., 3 the place was not described with suffiYeates, 49, 1800; 4 Dall. 212, 1800; cient legal certainty. State v. Walker, and so where the indictment stated Brev. MS. that the prosecutor was seised in his It is sufficient to describe the premdemesne as offee, and that his ises as a certain close of two acres “ peaceable possession thereof, as of arable land, situate in S. township, aforesaid, continued until,” etc., the in the county of H., being a part of a latter words being rejected as sur- larger tract of land adjoining lands of plusage. Resp. v. Shryber, 1 Dall. A. and B." Dean v. Com., 3 S. & R. 68, 1782.

418, 1817. An indictment stating that the pro- “A certain tavern stand, with the secutor was seised,” without stating appurtenance, including about five when he was seised, was held to be acres of land adjacent thereto, at the good. Ibid

M. and U. cross-roads in E. Township Com. v. Fitch, 4 Dall. 212, 1800. in A. County,” is, it seems, a sufficient *M’Naire v. Remp., 4 Yeates, 326, description of the premises to support 1806; Dean v. Com., 3 S. & R. 418, an award of restitution in forcible 1817.

entry and detainer. Torrence v. Com., * Torrence v. Com., 9 Pa., 184, 1848. 9 Pa. 184, 1848.

Where the indictment was for forci- And so as to "all that piece of land ble entry and detainer of a messuage containing seventy-six acres and one in possession of A. for a term of years, hundred and fifty perches, and the and the evidence was of forcible entry allowance of six per cent., it being into a field, and no lease was produced, part of a large tract known as the it was held that the indictment could Peter Jackson improvement, adjoinnot be supported. Pennsylvania v. ing lands of David Henderson on the Elder, 1 Smith's Laws, 3, 1700. And east.” Van Pool v. Com., 13 Pa. 391, so where the indictment averred forci- 1850. ble entry on a field, and it was proved When restitution is not claimed, it that the attack was a house. is enough to aver possession alone. State v. Smith, 2 Ired. 127, 1841; and That such is the case has been already VOL. II.--3

33

on

ble.

Title is necessary

§ 1110. Although a forcible entry and forcible detainer are

charged in the same indictment, they are nevertheless disEntry and tinct offences, and the defendant may be acquitted of one are divisi- and convicted of the other. If one be defectively set out,

he may be convicted of that which is well set out. § 1111. To enable the court to award restitution on a conviction for forcible detainer, it is necessary that there should be an estate, either freehold or leasehold, averred in the prosecutor. Thus where

an indictment stated that A.“ was lawfully and peaceably

seised” of the premises, and that B., son of A., was lawto restitu- fully in possession of the same," and that “the defendant

entered and expelled the said B. from possession of the premises, and forcibly disseised the said A. of the same, and the said B., so expelled and held out,” etc., it was held that it was error to award restitution to A. Yet it has in England been held sufficient for the purposes of restitution to aver that the estate was“ in the possession of W. P., he, W. P., then and there being also seised thereof."4 § 1112. Indictments for forcible trespass on personalty are rare

at common law, since it is much simpler to indict for an

assault, which, as has been seen, is a usual ingredient in trespass or a forcible trespass. If, however, an indictment of this personalty kind should be framed, it is necessary to aver actual pos

session in the prosecutor, and violence offered to him, or violent wresting of the chattel from him, so as to constitute

Indictment for forcible

must aver violence.

stated, as here the defendant proceeds ? R. v. Bowser, 8 Dowl. 128; 1 W., merely for the offence at common law. W. & H, 345, 1838 ; R. v. Taylor, 7 Supra, 8 1108.

Mod. 123, 1702; Resp. v. Campbell, 1 1 People v. Rickert, 8 Cow. 226, Dall. 354, 1788; State v. Speirin, 1 1828; People v. Godfrey, 1 Hall, 240, Brev. 119, 1802. 1828 ; People v. Anthony, 4 Johns. * Burd v. Com., 6 S. & R. 252, 1820. 198, 1809; Com. v. Rogers, 1 S. & R. See R. v. Depuke, 11 Mod. 273; Com. 124, 1814; State v. Ward, 1 Jones, v. Toram, 2 Pars. 411, 1846 ; Torrence (N. C.) 290, 1854; Strong v. State, v. Com., 9 Pa. 184, 1848; Van Pool v. 105 Ind. 1, 1886. See Whart. Cr. Com., 13 Pa. 391, 1850; State v. BenPl. & Pr. 22 736 et seq.; Whart. Crim. nett, 4 Dev. & Bat. 43, 1839; State v. Ev. & 129. Forcible entry and de- Anders, 8 Ired. 15, 1847. See 1 Russ. tainer

may be charged in one indict- on Cr. (9th Am. ed.) 431. ment, and such indictment is not bad * R. v. Hoare, 6 M. & S. 266; R. v. for duplicity. Com. v. Miller, 42 Leg. Dillon, 2 Chit. 314. Int. 247, 1884.

5 See supra, & 1092.

a breach of the peace. Yet, it is enough to say that the defendant, "with strong hand,” and against his will, took, etc., the chattel from the possession of the prosecutor, in whose possession it then and there was. If sufficient violence to constitute a robbery be alleged, then the prosecution must try, not for forcible trespass, but for robbery. Under these circumstances, common law indictments for a forcible trespass have been rarely attempted. It must be kept in mind, in considering this question, that a party has at common law the right to rescue even by force (if such force be not excessive) his property from the hands of another. If, however, in doing this, he use unnecessary force, or stimulate a riotous demonstration, he is indictable.”

§ 1113. Of summary convictions by justices under 15 Ric. II. c. 2; and 8 Hen. VI. c. 9, there are no reported Ameri

In England it is held that to sustain the pro- sustain cedure there must be alleged and proved an unlawful convicentry as well as a forcible detainer. Where a conviction stated that justices bad convicted A. of forcible detainer upon their own view, and that afterward a complaint was made to the justices that A. forcibly entered the premises, and that notice of such complaint was given to A., who received it, but said nothing, and then went on to allege that the justices received evidence on oath of the unlawful entry; it was held that the conviction was bad, for not showing that A. had been summoned to answer the charge of the unlawful entry, or that he had had an opportunity afforded him of defending himself against such charge.?

Practice to

can cases.

summary

tions.

5

State v. Mills, 2 Dev. 420, 1830; Supra, & 1100.

See Mr. Henry State v. Watkins, 4 Humph. 256, 1843; Wharton's note to Blades v. Higgs, 10 State o. Simpson, 1 Dev. 504, 1828; C. B. (N. S.) 713, (100 Eng. L.) 1861. State o. Armfield, 5 Ired. 207, 1844. 6 Attwood v. Joliffe, 3 New Sess. Cas. * State v. Mills, 2 Dev. 420, 1830. Q. B. 116, 1848; R. v. Oakley, 4 B. &

For an instance where a prosecu- Ad. 307; 1 N. & M. 58, 1832; R. v. tion of this class was sustained, see Wilson, 5 Ibid. 164, 1835. As to proState v. McAdden, 71 N. C. 207, 1874. cedure, see R. v. Wilson, 3 N. & M.

Supra, $ 100; Blades v. Higgs, 10753; 1 Ad. & El. 627, 1834.
C. B. (N. S.) 713, 1861. See State v. ? Attwood v. Joliffe, ut supra.
Covington, 70 N. C. 71, 1874.

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