and above the value of the fish taken or destroyed (if any), such sum of money not exceeding five pounds as to the justice shall seem meet, provided always, that nothing hereinbefore contained shall extend to any person angling in the day time; but if any person shall by angling in the day time unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any such water as first mentioned, he shall, on conviction before a justice of the peace, forfeit and pay any sum not exceeding five pounds; and if in any such water as last mentioned, he shall on the like conviction forfeit and pay any sum not exceeding two pounds as to the justice shall seem meet; and if the boundary of any parish, township, or vill, shall happen to be in or by the side of any such water as is hereinbefore mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto."

Indictment under the first clause of this section.

That A. B. late of &c. at &c. in a certain stream of water there Indictment for situate, then and there running through and being in certain land, to taking fish in wit, a pleasure-ground of one C. D. wherein the said C. D. then water adjoining had a right of fishery there, five fish called eels, of the value of five or belonging to shillings, then and there being found in the said stream in the said a dwellingclose of the said C. D. then and there adjoining and belonging to the dwelling house of the said C. D. unlawfully and wilfully did take, against the form of the statute, &c. and against the peace, &c.

§ 12. FORCIBLE ENTRY AND DETAINER.

house.

Offence.-The assertion of right to lands or houses by Offence at comforce has always been discouraged by Courts, from a just mon law. apprehension of the tumults to which such proceedings may lead. Although, therefore, no indictment will lie

mere trespass, accompanied only by constructive force, yet it seems to be established that an entry on lands or houses with actual violence is an offence indictable at common law as a forcible entry; and that the illegal and violent maintenance of such possession is, in like manner, indictable as a forcible detainer. (s) To sustain such an indictment at common law, it seems that no circumstances of great public violence or terror are necessary; for it is laid down, (t)" that an entry may be said to be forcible, not only in respect of violence actually done to the person of a man, as by beating him if he

(s) See Lord Kenyon's observations in " The King v. Wilson and others," 8 T. R. 361.

(t) Hawk. b. 1. c. 64.

Forcible entry

on statute.

refuse to relinquish his possession, but also in respect of any violence in the manner of entry, as by breaking open the doors of a house, whether any person be therein or not, especially if it be a dwelling house." The offence of forcible entry at common law is punishable by fine or imprisonment in respect of the injury done to the public peace.

But further to discourage the attempts of parties to assert their claims by violence, statutes were passed in very early times, not merely to annex punishment to the offence of entering by strong hand on a peaceable possession, but to grant restitution to the party dispossessed on the conviction of the offender. After, therefore, the statute 5 Ric. 2. c. 8. had declared the law, "that none should make entry into lands and tenements but in cases where entry is given by the law, nor, in such cases, with strong hand nor with multitude of people, but only in a peaceable and easy manner, on pain of imprisonment and ransom," the statute 15 Ric. 2. c. 2. gave a remedy by summary commitment of the offender till fine and ransom; and by 8 Hen. 6. c. 9. this provision was extended to cases of forcible detainer, and justices of the peace were empowered to restore the premises to the former possesOn these statutes it was doubted whether any but a freeholder could have restitution; and, therefore, the 21 Jac. 1. c. 25. applied the power conferred by the former acts to the restitution of possession of which tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit, statute merchant, or statute staple, had been forcibly deprived. Under these acts, therefore, a prosecutor who is a freeholder or lease-holder may have restitution, on conviction of the party of whose dispossession he complains. This restitution may be awarded by the court of Quarter Sessions, as justices of peace are expressly empowered to grant it; and in this respect they have greater power than justices of oyer and terminer and gaol delivery, who cannot grant restitution, but can only punish the offender. (u)

sor.

It seems to have been at one time supposed that greater force was necessary to sustain an indictment for forcible entry at common law than under the statutes, (v) but the observations of Lord Kenyon, in the King v. Wilson, (w) seem to negative this distinction, and to place both proceedings on their true ground. "I do not know," said

Hawk. b. 1. c. 64. s. 61; Bac. Abr. Forcible Entry (F),
The King v. Blake, 3 Burr. R. 1731.

(w) 8 T. R. 357.

he, "that it has ever been decided that it is necessary
to allege a greater degree of force in an indictment at
common law for a forcible entry than in an indictment on
the statutes; therefore an indictment at common law,
charging the defendants with having entered unlawfully and
with strong hand, is good; for the words with strong hand
mean something more than a common trespass." In truth
there is no good sense in any distinction as to the degree
of force; in neither case will a mere entry by an open
door or window, or with a key, however procured, as by
trick and contrivance, suffice; (x) nor an entry which the
possessor is induced to permit by threats of destroying
his cattle or goods; (y) but any entry effected by an actual
breaking of a dwelling-house, or attended by an actual
array of force, will be indictable in either form. The true
distinction is, that on an indictment at common law the
prosecutor need only prove a peaceable possession at the
time of the ouster; and that here, as he alleges no title,
he can have no restitution; while in an indictment on the
statute of Richard, a seisin in fee must be alleged; on
that of James, the existence of a term or other tenancy;
and, on these statutes, restitution will be granted.
must be observed, however, that even on these statutes
proof that the prosecutor holds colourably as a freeholder
or leaseholder will suffice; and that the court will not, on
the trial, enter into the validity of an adverse claim made
by the defendant, and which he ought to assert, not by
force but by action. (2) As the prosecutor, under the sta-
tute has a direct interest in the result of the trial, it is
still doubtful whether he is a competent witness. (a)

Indictments.

It

That A. B. late of &c. C. D. late of &c. and E. F. late of &c. Indictment for a together with divers other persons, to the number of six or more, forcible entry whose names are to the jurors aforesaid as yet unknown, on, &c. and detainer at with force and arms, and with pistols, staves, and other offensive common law.

(x) Com. Dig. Forcible Entry (A). 3.

(y) Hawk. b. 1. c. 64. s. 28.

(z) Per Vaughan, Baron, in "the King v. Williams," tried at Monmouth at the summer assizes, 1828, and confirmed by the Court of King's Bench in Michaelmas Term following, upon the motion of Mr. Serjeant Russell, for a new trial.

(a) The point was reserved by Mr. Baron Vaughan in the case above cited. In that of "the King v. Bevan," Ry. and Moody, N. P. C. 242, Mr. Justice Littledale, inclined to think him incompetent. The question will be found fully and ably discussed in a note to the report of the last decision; and a rule nisi is now pending for its discussion in K. B.

Indictment for

a forcible entry into a leasehold,

under 5 Ric. 2. c. 8.

Indictment on

weapons, &c. aforesaid, into a certain messuage and garden (b) there situate and being, and then and there in the peaceable possession of G. H. unlawfully, violently, and injuriously, and with a strong hand, did enter; and that the said A. B., C. D., and E. F. together with the said other persons, then and there with force and arms, and with a strong hand, unlawfully, violently, forcibly, and injuriously did expel, amove, and put out the said G. H. from the possession of the said messuage and garden, and the said G. H. so as aforesaid expelled, amoved, and put out from the possession of the same, then and there, with force and arms, and with a strong hand, unlawfully, violently, forcibly, and injuriously have kept out, (c) from the day and year aforesaid until the taking of this inquisition, and still do keep out, to the great damage of the said Ĝ. H. and against the peace, &c.

That one C. D. on &c. was seized in his demesne as of fee (describing the estate, whether in fee simple, or for life), of and in a certain messuage with the appurtenances there situate; and that A. B. late of &c. on &c. at &c. while the said C. D. was so seized of the said messuage with the appurtenances as aforesaid, and was peaceably possessed thereof, into the said messuage with appurtenances with force and arms, and with strong hand, (d) unlawfully did enter, and the said C. D. from the peaceable possession of the said messuage with the appurtenances, then and there, with force and arms, and with strong hand, unlawfully and injuriously did expel and put out; and the said C. D. from the possession thereof so a aforesaid, with force and arms, and with strong hand, being unlawfully expelled and put out, the said A. B. from the said, &c. until the taking of this inquisition, from the possession of the said messuage with the appurtenances, with force and arms, and with strong hand, unlawfully and injuriously then and there did keep out, and still doth keep out, (e) against the form of the statute, &c. and against the peace, &c.

An indictment on 21 Jac. 1. c. 15. will be exactly the 21 Jac. 1. c. 15. same as the above, except in the introductory description of the prosecutor's estate, which should be alleged according to the fact, as for a term of years unexpired, or as a copyhold tenancy, or tenancy by elegit, statute merchant, or statute staple.

(b) The premises must be described with certainty; and therefore an allegation that the defendant entered a tenement will not suffice; 3 Leon. 102; Co. Lit. 6. (a)

(c) The same description and degree of force is necessary to constitute a forcible detainer, as a forcible entry; Dalt. 126; Hawk. b. 1. c. 64.

(d) These or equivalent words are necessary even in an indictment on the statute; for it would not suffice to describe on the record a mere civil trespass; see 3 Burr. R. 1698.

(e) No indictment can warrant an award of restitution unless it allege that the wrong doer both ousted the party grieved and continued in possession at the time of finding the indictment; for it would be a repugnancy to award restitution to one who never was in possession, and vain to award it to one who does not appear to have lost it; Hawk. b. 1. c. 64. s. 41.

§ 13. FORESTALLING, REGRATING, AND ENGROSSING.

Forestalling is the buying or contracting for any species Offences, of provisions or merchandize in the way to market, dissuading persons from bringing goods thither, or persuading them to enhance the price when there, so that prices may be raised in the market.(f) Regrating is the buying corn or other victual, in any market, and selling it again in the same market, or within four miles of the same market, which has been supposed also, of necessity, to enhance prices. (g) Engrossing is the buying up a large quantity of any kind of food, with a view to sell again, so as to engross and control the market. (h) An old statute, 5 and 6 Edw. 1. c. 14. was directed against these supposed offences, which were believed to have a tendency to prevent the public from being supplied with the necessaries of life upon reasonable terms. This statute was repealed by 12 Geo. 3. c. 71; yet the courts have still considered forestalling and engrossing offences at common law; (i) and as to regrating, the judges were equally divided. (k) It seems, however, that, at the present day, acts of this kind would not be deemed offences unless conducted to an extent manifestly injurious to the public, or accompanied by circumstances manifesting a direct intention to do a public injury. (7)

Indictments.

That A. B. late of &c. on &c. at &c. unlawfully did buy and Indictment for cause to be bought of and from one C. D. thirty lambs, then and forestalling. there coming and being driven to a certain market in the county of

called market, for the sale of oxen, heifers, cows, sheep, and lambs, for the purpose of being exposed to sale and sold in the said market, and before the same were brought into the said market, where the same should have been sold, with intent then and there to raise and enhance the price of lambs in the said market, to the great prejudice of all the liege subjects of our said Lord the King resorting to the said market, and against the peace, &c.

That A. B. late of &c. on &c. at &c. in a certain market called Indictment for the Corn Exchange there, unlawfully did buy, obtain, and get into regrating.

his hands and possession, of and from C. D., E. F., and G. H. a

f) 4 Bla. Com. 360. (g) Id. Ibid.

(i) The King v. Waddington, 1 East, R. 143.

(h) Id. ibid.

(k) The King v. Rushton, Hil. Term, 40 Geo. 3.

(See the cases of the King v. Webb and others, 14 East, R. 406; and Pratt v. Hutchinson, 15 East, R. 511.

R