aforesaid, the dwelling-house of J. S., there situate, unlawfully, maliciously and secretly did break and enter, with intent to disturb the peace of the commonwealth; and so being in the said dwelling-house, unlawfully, vehemently and turbulently did make a great noise, in disturbance of the peace of the commonwealth, and greatly misbehave himself in the said dwelling-house, and E. S. the wife of the said J. greatly did frighten and alarm, by means of which said fright and alarm, she the said E., being then and there pregnant, did on the seventh day of September, in the year aforesaid, at the county aforesaid, miscarry, and other wrongs to the said E. then and there did, to the evil example, &c.

(486) Cutting ropes across the ferry.(0)

That H. K., &c., on, &c., at, &c., did maliciously and wantonly cut two ropes stretched across the river Schuylkill by C. P., the occupiers of the ferry over Schuylkill, commonly called the upper ferry, and that the said ropes are used in drawing boats and carrying travellers over the same river and ferry, to the great damage of the said C. P., and against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(487) Breaking glass in a building. Mass. Rev. Stat., ch. 126, s. 42. That C. D., late of B., in the County of S., laborer, on the first day of June, in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, wilfully, maliciously, wantonly, and without cause did break and destroy the glass, to wit, ten panes of window-glass, each of the value of one dollar, of the property of one A. B., in a certain building there situate, not his the said C. D.'s own, but which building then and there belonged to and was the property of the said A. B., the said glass then and there being parcel of the realty, to wit, of the building aforesaid, (oo) against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)

(488) Burning a record.(p)

That H. E., &c., L. K., &c., W. H., &c., M. H., &c., and G. S., &c., on, &c., at, &c., a certain paper writing, containing in itself a certificate of four sufficient housekeepers of the neighborhood, inhabiting in and near the said township, and with their names subscribed, and to the justices of the peace of the same county directed, that they the said housekeepers had laid out a road and highway in the said township, according to an order of the same justices in their Quarter Sessions made for the laying out the same, which to the same justices in their Quarter Sessions had been and legally made, certified and returned, and of record affiled, according to the act of Assembly in such case made and provided, to wit, at the City of Philadelphia, in the said county,

of disturbing their neighbors. To this invention must be opposed general principles, calculated to meet and punish them. I am of opinion that the conduct of the defendant falls within the range of established principles, and that the judgment of the court below should be reversed." See similar precedent, post, 868.

(0) Drawn and prosecuted in 1773, by Mr. Andrew Allen, then attorney-general of Pennsylvania.

(oo) See as to necessity of this allegation, Com. v. Bean, 6 Bost. Law Rep., N. S., 387. (P) Drawn by Tench Francis (Attorney-General of Pennsylvania), some years before the Revolution, though I have been unable to fix the exact date. The existence of this, and of several kindred precedents under the head of "Malicious Mischief," "Nuisances," &c., shows the liberality with which the common law was applied under the colonial system.

unjustly and unlawfully did burn and destroy, to the manifest contempt of the good laws of this province, to the evil example of all others in the like case offending, against, &c. (Conclude as in book 1, chap. 3.)

CHAPTER IX.

FORCIBLE ENTRY AND DETAINER. (a)

(489) General frame of indictment at common law.

(490) Another form of same.

(491) Against one, &c., at common law, with no averment of either leasehold or freehold possession in the prosecutor.

(492) Forcible entry, &c., into a freehold, on stat. 5 Rich. II., c. 8.

(493) Forcible entry into a leasehold, on stat. 21 Jac. I., c. 15.

(494) Forcible detainer on stat. 8 Hen. VIII., c. 9, or 21 Jac. I., c. 51.

(495) Forcible entry. Form in use in Philadelphia. First count, at common law.

(498) Breaking and entering a close, and cutting down a tree, under the Pennsylvania act.

(489) General frame of indictment at common law.

That A. B., late of, &c., C. D., late of, &c., and E. F., late of, &c., together with divers other persons, to the number of six or more, whose names are to

(a) Before considering the pleading in forcible entry and detainer, the general character of the offence will be considered.

(Forcible entry at common law.) The assertion of right to lands or houses by force has always been discouraged by courts, from a just apprehension of the tumults to which such proceedings may lead. Although, therefore, no indictment will lie for a mere trespass, accompanied only by constructive force, yet it seems to be established that an entry on land, or into a house, garden, &c., or a church, though no one be therein, with such actual violence as amounts to an unlawful act, or public breach of the peace, expressed in law to be "with force and arms and a strong hand," e. g. bringing unusual weapons, threatening violence, breaking open a door, or violent ejection of the possessor of a house, is an offence indictable at common law, as a forcible entry; Langdon v. Potter, 3 Mass. 215; Harding's case, 1 Greenl. 22; Com. v. Taylor, 5 Binn. 277; Newton v. Harland, 1 Man. & G. 644; Cruiser v. State, 3 Harrison 206; State v. Mills, 2 Dev. 420; State v. Spierin, 1 Brevard 119; though the statute gives other remedies to the parties grieved, viz., restitution and damages; and that the illegal and violent maintenance of possession, if the entry was unlawful, is, in like manner, indictable as a forcible detainer; Reg. v. Newlands, 4 Jur. 322, Littledale J.; Le Blanc J., R. v. Wilson and others, 8 T. R. 363; Ld. Kenyon, ib. 357; Co. Lit. 257; R. v. John Wilson, 3 A. & E. 817; S. C. 5 N. & M. 164; Com. Dig. tit. Forcible Entry (A. 1, 2, B. 1). An entry, though by one person only, will be forcible if either by act or threat at the time of his entry he gives the party in possession just cause to fear bodily hurt if he does not give way; and the same circumstances of violence or terror which make an entry forcible, make a detainer forcible also. A detainer may be forcible whether the entry were so or not; Hawk. b. 1, c. 64; Com. Dig. tit. Forcible Entry; if such entry was unlawful; R. v. Oakley, 4 B. & Ad. 307; 1 N. & M. 58. Though a breach of the peace is necessary to constitute the offence, Com. v. Dudley, 10 Mass. 403, it seems that no circumstances of great public violence or terror are requisite; for it is laid down "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 refuse to relinquish his possession, but also

the jurors aforesaid as yet unknown, on, &c., with force and arms, and with pistols, staves, and other offensive weapons, &c., into a certain messuage or

in respect of any violence in the manner of entry, as, by breaking open the doors of a house, whether any person be in it at the same time or not, especially if it be a dwelling-house;" Hawk. b. 1, c. 64, s. 26; State v. Pollock, 4 Iredell 305; Bennett v. State, 4 Rice 340. The offence of forcible entry at common law is punishable by fine or imprisonment, in respect to the injury done to the public peace.

(Forcible entry within the statutes.) But further to discourage the attempts of parties to assert their claims by violence, statutes were passed in England in very early times, which have been substantially re-enacted in several of the states, 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 Rich. II. s. 1, 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 (ten making a 'multitude;' Co. Lit. 257 a; R. v. Heine, cited Stra. 195; ex parte Davy, 6 Jur. 949, Wightman J.), but only in a peaceable and easy manner, on pain of imprisonment and ransom," the statute 15 Rich. II. c. 2, gave a remedy by summary commitment of the offender till fine and ransom; and by 8 Hen. VI. 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 possessor, where the force had been found by a jury summoned by them; Reg.v. Harland and others, 1 P. & D. 33; S. C. 8 A. & E. 826; 2 M. & Rob. 141; R. v. Hake, 4 Man. & Ry. 483, n. The inquisition must set forth the estate possessed by the party in the property disputed; Reg. v. Bowser, 8 D. P. C. 128. On these statutes it was doubted whether any but a freeholder could have restitution; and, therefore, the 21 Jas. I. c. 25, applied the power conferred by the former acts to the restitution of possession of which tenants for terms of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit, statute merchant, or statute stople, had been forcibly deprived; on this account the prosecutor's interest in the premises must be stated in the indictment; Ld. Kenyon, R. v. Wilson and others, 8 T. R. 357. Under these acts, therefore, a prosecutor who is a freeholder or leaseholder, &c., 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 the peace are expressly empowered to grant it; and in this respect they act as judges of record; 3 B. & Ad. 688, Littledale J.; and have greater power than justices of Oyer and Terminer and Gaol Delivery, who cannot grant restitution, but can only punish the offender; Hawk. b. 1, c. 64, s. 61; Bac. Abr. Forcible Entry (F).

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; R. v. Bake, 3 Burr. R. 1731; but the observations of Ld. Kenyon, in R. v. Wilson, 8 T. R. 357, seem to negative this distinction, and to place both proceedings on their true ground. "I do not know," said 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 ;" and Le Blane and Lawrence Js. added that the words with strong hand mean something more than vi et armis, or a common trespass, viz., the degree of violence amounting to a breach of the public peace, and therefore indictable as forcible entry; see 8 T. R. 361, 363. In truth, there is no good sense in any distinction as to the degree of force indictable in either way; but 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; Com. Dig. Forcible Entry (A); 3 Hawk. b. 1, c. 64, s. 26; nor an entry which the possessor is induced by threats of destroying his cattle or goods; Hawk. b. 1, c. 64, s. 25; but an 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 needs only to prove a peaceable possession at the time of the ouster; and that there, as he alleges no title, so he can have no restitution: while in an indictment on the statute of Richard, his interest, viz., a seisin in fee, must be alleged; on the statute of James, the existence of a term or other tenancy; and on these statutes restitution will be granted; 1 Brevard 119; 1 Greenl. 31. It must be observed, however, that, even on these statutes, proof that the prosecutor holds colorably 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, which he ought to assert, not by force, but by action. Per Vaughan B., in R. v. Williams, Monmouth Summer Assizes, 1828, Dickinson's Q. S. 378; confirmed on motion for a new trial; and see Jayne

garden(b) there situate, and then(c) and there being in the peaceable possession(d) of G. H., unlawfully, violently, and injuriously, and with a strong hand(e), 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, (f) from the day and year aforesaid until the taking out of this inquisition, (g) and still do keep out, to the great damage of the said G. H., and against, &c. (Conclude as in book 1, chap. 3.)

v. Price, 5 Taunt. 325; 1 Marsh. 68, S. C.; Dutton v. Tracy, 4 Conn. 79; Res. v. Shryber, 1 Dall. 68; People v. Anthony, 4 Johns. 198; People v. Rickert, 8 Cow. 226. See the subject generally examined in Wh. C. L., as follows:

A. OFFENCE GENERALLY.

B. STATUTES.

Pennsylvania.

Forcible entry, § 2019.

Virginia.

Forcible entry, § 2020.

Entry with strong hand and multitude of people, 2021.
Restitution to be awarded, § 2022.

C. FORCIBLE ENTRY, &c., AT COMMON LAW.
I. Who may commit the offence, § 2026.

II. Who may be the subject of it, § 2030.

III. What force is necessary, § 2032.

IV. What possession the prosecutor must have, § 2042.

V. Indictment, § 2047.

(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. 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 tract of land, without mentioning the number of acres, was held bad after conviction; M'Nair et al. v. Republicam, 4 Yeates 326. Where the words were, "a certain messuage with the appurtenances, for a term of years in the district of Spartanburgh," it was adjudged that the place where was not described with sufficient legal certainty; State v. Walker and Davidson, Brev. MSS. It is sufficient to describe the premises as "a certain close of two acres of arable land, situate in S. township, in the County of H., being a part of a large tract of land adjoining lands of A. and B. ;" Dean et al. v. Com., 3 S. & R. 418.

(c) See 2 Chit. C. L. 220, 222; 2 Q. B. Rep. 406.

(d) Possession is all that need be laid at common law; Burd v. Com., 6 S. & R. 252; Res. v. Campbell, 1 Dall. 354; though upon this averment alone restitution cannot be awarded; Wh. C. L. § 2047, &c. Under the statutes, however, it is necessary that either a freehold or leasehold estate should be laid, as will be presently seen.

(e) These words are vital; greater force must beaverred than is expressed by the words vi et armis. The trespass must involve a breach of the peace, or directly tend to it, as being done in the presence of the prosecutor, to his terror or against his will; State v. Mills, 2 Dev. 420; but see Harding's case, 1 Greenl. 22.

(f) 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, s. 39.

(g) No indictment can warrant an award of restitution, unless it alleges that the wrongdoer 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.

304

(490) Another form of same.(h)

That A. B., &c., on, &c., at, &c., with an axe and auger, unlawfully, violently, forcibly, injuriously, and with a strong hand, did enter into the dwelling-house of J. C., in said and in his actual and exclusive possession

and occupation with his family, and the said A. B. did then and there unlawfully, violently, forcibly, injuriously, and with a strong hand, bore into said dwelling-house with said auger, and cut away part of said house, and stove in the doors and windows thereof with said axe, said J. C.'s wife and children being in said house, thereby putting them in fear of their lives, &c.

(h) This count was sustained in Harding's case, 1 Greenl. 22.

"If the facts charged," said Preble J., "do not constitute an indictable offence at common law, no sentence can be pronounced upon the defendant.

"The earlier authorities do sanction the doctrine, that at common law, if a man had a right of entry in him, he was permitted to enter with force and arms, when such force was necessary to regain his possession (Hawk. P. C. c. 64, and the authorities there cited). To remedy the evils arising from this supposed defect in the common law, it was provided by statute 5 Rich. II. c. 7, that none should make any entry into any lands or tenements but in cases where entry is given by the law; and in such cases, not with strong hand nor with multitude of people but only in a peaceable and easy manner.' The authorities are numerous to show that for a trespass-a mere civil injury, unaccompanied with actual force or violence, though alleged to have been committed with force and arms-an indictment will not lie. But in Rex v. Bathurst, Say. R. 305, the court held, that forcible entry into a man's dwelling-house was an indictable offence at common law, though the force was alleged only in the formal words vi et armis. In Rex v. Bake, 3 Burr. 1731, it was held, that for a forcible entry an indictment will lie at common law; but actual force must appear on the face of the indictment, and is not to be implied from the allegation, that the act was done vi et armis. In the King v. Wilson, 8 D. & E. 357, an indictment at common law charging the defendant with having unlawfully and with a strong hand entered the prosecutor's mill and expelled him from the possession, was held good. In this latter case, Lord Kenyon remarks, 'God forbid these acts, if proved, should not be an indictable offence; -the peace of the whole country would be endangered, if it were not so.' The case at bar is a much stronger one, than either of those cited. The peace of the state would indeed be jeopardized, if any lawless individual destitute of property might, without being liable to be indicted and punished, unlawfully, violently and with a strong hand, armed with an axe and auger, forcibly enter a man's dwelling-house, then in his actual, exclusive possession and occupancy with his wife and children-stave in the doors and windows, cutting and destroying, and putting the women and children in fear of their lives.

"The second objection, that no seisin is alleged, does not apply to indictments for forcible entries at common law. Under the statute of New York against forcible entry, the party aggrieved has restitution and damages; and hence it is necessary that the indictment should state the interest of the prosecutor. The People v. Shaw, cited by the defendant's counsel, and the People v. King, 2 Caines 98, are cases upon the statute of that state. In Rex v. Bake, Mr. Justice Wilmot remarks: 'No doubt indictments will lie at common law for a forcible entry, though they are generally brought on the acts of Parliament. On the acts of Parliament it is necessary to state the nature of the estate, because there must be restitution, but they may be brought at common law.' In the King v. Wilson, Lord Kenyon says: 'No doubt the offence of forcible entry is indictable at common law, though the statutes give other remedies to the party aggrieved, restitution and damages; and therefore in an indictment on the statutes, it is necessary to state the interest of the prosecutor.' Our statute contains no such provision, and gives no remedy by indictment. It simply provides a process to obtain restitution, leaving the parties, the one to his action for damages, the other to his liability to be indicted and punished at common law.

"With respect to the third objection, it is alleged in the indictment that the house was Cates' dwelling-house, in his actual and exclusive possession and occupation with his family, and that the defendant unlawfully entered, &c. On the whole we think the indictment contains sufficient matter to warrant a judgment upon the verdict which has been found against the defendant, and the motion in arrest is accordingly overruled."