1 Sid. 101. that an entry which had no other force than such as is implied by Co. Lit. 257. the law in every trespass whatsoever, is not within these statutes. Hale, 138. And therefore, for the better understanding hereof, I shall 1 Lev. 90. consider, 1. In respect of what acts of violence an entry may be adjudged forcible. 2. In respect of what circumstances of terror. As to the first of these particulars, viz. In respect of what acts of violence an entry may be adjudged forcible. 3 Burr. 1732. Jobson, notis. 236. Dalt. c. Rex v. Sect. 26. It seems to be agreed, that an entry may be said to be forcible not only in respect of a violence actually done to the person of a man, as by beating him if he refuse to relinquish his possession, but also in respect of any other kind of violence in Sum. 116. 138. 1 Roll. 2. the manner of the entry, as by breaking open the doors of a Noy, 136, 137. house, whether any person be in it at the same time or not, espe- (a) See Rex v. cially if it be a dwelling-house, (a) and perhaps also by any act Bathurst, of outrage after the entry, as by carrying away the party's goods, (b) &c. which being found in an assise of novel disseisin, will make the defendant a disseisor with force, and subject him to fine and 3 Burr. 1702. imprisonment. And, according to some opinions, an entry may 30 Ass. 50. be said to be forcible from the bare drawing up of a latch, or 11 H. 4. 16, 17. pulling back the bolt of a door; but surely such inconsiderable 2 Inst. 235, circumstances as these, which commonly pass between neighbour and neighbour, without any offence at all, can never bring a man Crom. 70. within the meaning of these statutes, which speak of entries with Moor, 656. strong hand, or multitude of people: and it hath been holden, that an entry into a house through a window, or by opening a door with a key, is not forcible. And it is said, that if one find a man out of his house, and forcibly withhold him from returning to it, and send persons to take peaceable possession thereof, in the party's absence, yet he is not guilty of a forcible entry, inasmuch as he did no violence to the house, but only to the person of the other. But perhaps this opinion may justly be questioned, because though the force be not actually doue upon the land, nor in the very act of the entry, yet since it is used with an immediate intent to make such entry, and is the only cause it met with no opposition, surely it cannot be said that the entry is without force, which, whether it be upon or off the land, seems equally within the statute. As to the second particular, viz. In respect of what circumstances of terror an entry may be adjudged forcible. * Lamb. 143. Lamb. 142, &c. Dalt. c. 77. Sect. 27. It is to be observed, that wherever a man, either by Summary, 128, his behaviour or speech, at the time of his entry, gives those who are in possession of the tenements which he claims, just cause to fear that he will do them some bodily hurt, if they will not give way to him, his entry is esteemed forcible, whether he 10 H. 7. 12. cause such a terror by carrying with him such an unusual num- Crom. 69. ber of servants, or by arming himself in such a manner, as plainly intimates a design to back his pretensions by force, or by actually threatening to kill, maim, or beat those who shall con- See the books 'tinue in possession, or by giving out such speeches as plainly above cited. B. Duress, 12. 16. 1 Inst. 253. Dalt. c. 77. Lamb. 143. Summary, 138. Lamb. 145. (a) 1 Sid. 101. (c) C. Car. 201. 22 II. 6. 33. B. Force, 7. C. Car. 201. imply a purpose of using force against those who shall make any resistance; as if one say that he will keep his possession in spite of all men, &c. Sect. 28. But it seemeth that no entry shall be judged forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any other such like damage which is not personal. Sect. 29. However, it is clear, that it may be committed by a single person as well as by twenty. As to the THIRD POINT, viz. What detainer is to be adjudged forcible. Sect. 30. It seemeth certain, that the same circumstances of violence or terror, which will made an entry forcible, will make a detainer forcible also: from whence it seems to follow, that whoever keeps in his house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor, if he dare return, shall be adjudged guilty of a forcible detainer, though no attempt be made to re-enter; and it hath been said, that he also shall come under the like construction, who places men at a distance from the house, in order to assault any one who shall attempt to make an entry into it; and that he also is in like manner guilty who shuts his doors against a justice of peace coming to view the force, and obstinately refuses to let him come in: but it is said, that a man ought not to be adjudged guilty of this offence, for barely refusing to go out of a house, and continuing therein in despite of another. As to the FOURTH POINT, viz. In respect of what kind of possessions one may be guilty of a forcible entry or detainer within those statutes. Sect. 31. It seems clear, that one may come within the danger thereof by a force done to ecclesiastical possessions, as (a) churches, (b) vicarage-houses, &c. as much as if the same were done to any temporal inheritance. Also it hath been holden for a general rule, that one may be indicted for a forcible entry into any such incorporeal hereditament, for which a (c) writ of entry will lie, either by the common law, as for (d) rent, or by statute, as for (e) tithes, &c. But I do not find any good authority, that such an indictment will lie for a (f) common or (g) office; but (e) C. Car. 201. it seems agreed, that an indictment of forcible detainer lies C. Car. 486. against any one, whether he be the terre-tenant or a stranger, (g) C. Jac. 18. who shall forcibly disturb the lawful (h) proprietor in the enjoy(h) Crom. 69. ment of any of the above-mentioned possessions; as by violently Lamb. 144. resisting a lord in his distress for a rent, or by menacing a comDalt. c. 77. moner with bodily hurt, if he dare put in his beasts into the common, &c. Yet it seems clear, that no one can come within the danger of these statutes by a violence offered to another in respect of a way, or such like easement, which is no possession. Also it seemeth, that a man cannot be convicted upon view, by force of 15 Rich. 2. of a forcible detainer of any such tenement, wherein he cannot be said to have made a precedent forcible Dalt. c. 77. 1 Mod. 73. 2 Keb. 709. entry, entry, because that statute gives the justices a jurisdiction of no Vide infra, s. 40. other forcible detainer, but what follows a forcible entry. As to the FIFTH POINT, viz. Who may be guilty of a forcible entry or detainer within these statutes. Sect. 32. It seems clear, that no one can come within the intention thereof by any force whatsoever done by him in entering into a tenement, whereof he himself had the sole and lawful possession, both at and before the time of such entry; as by breaking open the door of his own dwelling-house, or of a castle, which Moor, 786. is his own inheritance, but forcibly detained from him by one C. Jac. 18. who claims the bare custody of it; or by forcibly entering into 2 Keb. 495. the land in the possession of his own lessee at will. Sed quære. row, 9 Geo. 2. Sect. 33. But it seems clear, that a joint-tenant, or tenant in 8 Ed. 4. 9. 19. common, may offend against the purport of these statutes, either 10 H. 7. 27. by forcibly ejecting, or forcibly holding out his companion; for King v. Marthough the entry of such a tenant be lawful per my et per tout, B. R. H. 174. so that he cannot in any case be punished in an action of trespass at the common law, yet the lawfulness of his entry no way excuses the violence, or lessens the injury done to his companion, and consequently an indictment of forcible entry into a moiety of Latch. 224. a manor, &c. is good. Palmer, 419. 257. Sect. 34. Also if a man have been in possession of land for never so long a time, by a defeasible title, and another, who hath a right of entry thereunto, make a claim, and yet such wrongful possessor still continue his occupation with force and arms, he is Co. Lit. 256, punishable for a forcible entry and detainer against the purport of these statutes, because all the estate whereof he was seised before such claim was wholly defeated by it, and his continuance Dalt. c. 77. in possession afterwards amounted in the judgment of law to a new entry. Crom. 69. Co. Lit. 357. Sect. 35. It is said, that an infant or feme covert may be guilty Dalt. c. 77. within the intention of the statutes, in respect of such actual vio- Crom. 69. lence as shall be done by them in person, but not in respect of what shall be done by others at their command, because all such commands of theirs are void: also it is said, that a feme covert may be imprisoned for such offence, but that an infant ought not, 1 Hale, 21. because he shall not be subject to corporal punishment by force B. Imp. 43.45, of the general words of any statute wherein he is not expressly named. As to the SIXTH POINT, viz. What ought to be the form of a record grounded upon these statutes: it hath been resolved, Sect. 36. FIRST, That it is sufficient in the caption of such an indictment to say, that it was taken before A. B. and C. D. jus- Palmer, 277. ticiariis ad pacem domini regis conservandum assignatis, without C. Jac. 633. shewing that they had authority to hear and determine felonies and trespasses; for the statute enables all justices of peace, as such, to take such indictments. Sect. 37. SECONDLY, It hath also been resolved, that the Dalt. c. 81. tenement in which the force was committed must be described 8 Mod. 66. with convenient certainty, for otherwise the defendant will neither 12 Mod. 417. know 3 Burr. 1732. (a) Dalt. 15. 2 Roll. 46. 2 R. Abr. 80. 3 Leon. 102. (b) Co. Lit. 6. (c) 2 R. Abr. 40. 1 Roll. 334. C. Jac. 633. Palmer, 277. (d) 2 R. Abr. 81. (e) 1 Bulst. 201. 2 Leon. 186. 3 Leon. 102. B. Forc. Ent. 23. (g) 2 Leon. 186. (h) 2 R. Abr. 80. Vide Stra. 474. (i) C. Jac. 633. Palmer, 277. (k) C. Eliz. 458. 2 R. Abr. 80. 2 Leon. 186. 3 Leon. 102. St. 21 Jac. 1. 2 Keb. 495. 3 Bulst. 71. 1 Ven. 23. 25. 11 Mod. 273. 1 Ven. 89. 2 Keb. 495. Salk. 260. Sayer, 142.225. know the special charge to which he is to make his defence, neither will the justices or sheriff know how to restore the injured party to his possession; and from hence it follows, that an indictment of a forcible entry into a (a) tenement (which may signify any thing whatsoever), (b) wherein a man may have an estate of freehold, or into a house (c) or tenement, or into two closes of meadow (d) or pasture, or into a rood (e) or half a rood of land, or into (f) certain lands belonging to such a house, or into such a house, without shewing in what (g) town it lies, or into a (h) tenement, with the appurtenances, called Truepenny in D. is not good. But it hath been resolved, that an indictment for a forcible entry in (i) domum mansionalem, sive messuagium, &c. is good, for these words are equipollent: also that such an indictment for an entry into a (k) close, called Serjeant Hern's close, &c. without adding the number of acres, is good, for here is as much certainty as is required in an ejectment. And it hath been adjudged, that such indictment may be void as to such part thereof only which is uncertain, and good for so much as is certain, and therefore that an indictment for a forcible entry into a house, and certain acres of land thereto belonging, may be quashed as to the land, and stand good as to the house. Sect. 38. THIRDLY, It hath been also resolved, that an indictment on 5 or 15 Rich. 2. needs not shew who had the freehold at the time of the force, because those statutes seem equally 1 Sid. 102. 306. to punish all force of this kind, without any way regarding what estate the party had on whom it was made; yet it seems, that such an indictment ought to shew that such an entry was made on the possession of some person who had some estate in the tenements, either as a freeholder or lessee for years, &c. for otherwise it doth not appear that such entry was made injurious to any one. But it is said, that an indictment on 8 Hen. 6. must shew, that the place wherein the force was committed was the freehold of the party grieved at the time of such force; and, therefore, that it is not sufficient to say, that the defendant with strong hand, &c. entered into such a house, existens liberum tenementum J. S. &c. without saying, adtunc existens liberum tenementum J. S. for otherwise it may be intended, that it was his freehold at the time of the indictment only, and not at the time of the force; and according to the general opinion, an indictment on that statute cannot warrant an award of restitution, unless it find that the party was seised at the time. Hetley, 73. Latch. 109. 2 Keb. 477. 499. Lut. 1548. 1 Keb. 191. 1 Sid. 102. Con. Yelv. 28. 1 Bulst. 177. Show. 272. Con. 1 Ven. 306. 3 Leon. 102. Aleyn, 49. Palmer, 277. 426. Con. 2 R. A. 80. Cro. Jac. 214. 633.939. Yet it is said, that the want of such an express finding may be supplied by such words as necessarily imply, that the party was seised at the time of the force: as where it is expressly laid that the defendant disseised J. S. &c. which is impossible, unless he had been seised of the freehold at the same time; and it hath been said, that it is sufficient in such an indictment to say that the party was possessionatus pro termino vita, without using the word seisitus, &c. for the same propriety of expression is not required in indictments as pleadings; sed quære. Also Also it is said, that if it do appear either in such an express or implicit manner, that the party injured had the freehold of the land at the time of the force, it is not necessary to shew further what estate in particular he had therein, or by what title he claims the same; for it is not the title but the possession which is in question. And upon the like ground it hath been adjudged, that an in- 2 R. Abr. 80. dictment on the said statute for entering on my farmer, and forcibly expelling him, and disseising me, is good, without shewing what estate such farmer had; for it is sufficient to shew that he had the possession, and the injury complained of is the forcible disseisin done to me, which, being the main point of the indictment, if it be sufficiently set forth in substance, the indictment is good: yet in this very case, the want of shewing that such farmer was ousted would have been an incurable fault; because his Yelv. 165. possession being my possession, unless he were ousted, I could not be disseised. Also it hath been holden, that as an indictment on 8 Hen. 6. Farresl. 123. must shew that the party who is put out of possession was seised of a freehold, in order to bring him within the purview of that statute, so also an indictment on 21 Jac. 1. c. 15. must shew, that the party injured was possessed of such an estate as will bring him within the provision of that act; and upon this ground 1 Mod. 73. 2 Keb. 709. it hath been resolved, that such an indictment, setting forth in 1 Ven. 306. general, that the party was possessed, or that he was possessed for a certain term, without adding that it was for years, is not 1 Sid. 102. good: for in the first case it may be intended, that he was possessed only by virtue of a lease at will; and in the second, that Salk. 260. he was possessed of a term for life; in neither of which cases he Farresl. 123. is within the benefit of 21 Jac. 1. c. 15. Yet it hath been said, that the possession of such an estate as is within that statute, sufficiently set forth in the reciting part of an indictment, as thus, quod cum J. S. was possessed for a certain term of years, and, 1 Mod. 73. being so possessed, was, by strong hand, &c. put out of possession, &c. without any direct allegation of such a possession. is 1 Vent, 108. Sect. 39. FOURTHLY, It hath been resolved, that a repugnancy in setting forth the offence in an indictment upon any of these statutes, is an incurable fault; and upon this foundation it hath been adjudged, that an indictment on 8 Hen. 6. setting forth, that the defendants pacificè intraverunt, &c. et eum adtunc et ibi- Aleyn, 50. dem vi et armis disseisiverunt, or that J. S. was seised and Show. 272. possessed, is void. And it hath also been adjudged, that an indict- Popham, 205. ment on 21 Jac. 1. setting forth, that the party injured was pos- Raymond, 67. sessed of a term for years, or of a copyhold estate, and that the 1 Keb. 423. defendants with strong hand ousted and disseised him, is void; 428. 435. 472. because it is absurd and contradictory to set forth a disseisin of such an estate whereof it is impossible that any man can be disseised. Also it hath been holden, that an indictment on 8 Hen. 6. setting forth a disseisin of land, adtunc et adhuc existens liberum tenementum J. S. is void for its repugnancy, inasmuch as it im- 2 Roll. 311. plies, that J. S. always continued in possession, which, if it be Show. 272. true, makes it impossible that he could be disseised at all; but i Sid. 102. some 2 Bulst. 121. 1 |