and assist the same justices to arrest such offenders, upon pain of imprisonment, and to make fine to the King. And, in the same manner, it shall be done of them that make such forcible entries in benefices or offices of holy church."

But this statute, as observed by Mr. Russell, (1 Russ. C. 284), (see also the observation of Patteson, J., in R. v. Oakley, 4 B. & Ad. 313), gave no remedy against those who were guilty of a forcible detainer after a peaceable entry, nor against those who were guilty of both a forcible entry and a forcible detainer, if they were removed before the coming of a justice of the peace; and it gave no power to the justice to restore the party injured to his possession, and did not impose any penalty on the sheriff for disobeying the precepts of the justices in the execution of the statute. The 8 Hen. VI. c. 9, was therefore passed to remedy this mischief.

8 Hen. VI. c. 9, s. 1, recites the 15 Ric. II. c. 2, s. 2. "And for that the said statute doth not extend to entries in tenements in peaceable manner, and after holden with force, nor if the persons which enter with force into lands and tenements be removed and voided before the coming of the said justices or justice, as before, nor any pain ordained if the sheriff do not obey the commandments and precepts of the said justices for to execute the said ordinance, many wrongful and forcible entries be daily made into lands and tenements by such as have no right, and also divers rights, feoffments, and discontinuances, sometimes made to lords, and other puissant persons, and extortioners, within the said counties where they be conversant, to have maintenance, and sometimes to such persons as be unknown to them so put out, to the intent to delay and defraud such rightful possessors of their right and recovery for ever, to the final disherison of divers of the King's faithful liege people, and likely daily to increase, if due remedy be not provided in this behalf. Our lord the King, considering the premises, hath ordained, That the said statute, and all other statutes of such entries or alienations made in times past, shall be holden and duly executed; joined to the same, that from henceforth, where any doth make any forcible entry on lands and tenements, or other possessions, or them hold forcibly, after complaint thereof made within the same county where such entry is made, to the justices of peace, or to one of them, by the party grieved, that the justices or justice so warned, within a convenient time, shall cause, or one of them shall cause, the said statute duly to be executed, and that at the costs of the party so grieved."

Sect. 3. "And moreover, though that such persons making such entry be present, or else departed before the coming of the said justices or justice, notwithstanding the same justices or justice in some good town next to the tenements so entered, or in some other convenient place, according to their discretion, shall have, or either of them shall have, authority and power to inquire by people of the same county, as well of them that make such forcible entries into lands and tenements, as of them which the same hold with force; and if it be found before any of them,

(a) This is a highly penal statute, and ought not to be extended by loose and uncertain construction. (Per Littledale, J. in R. v. Oakley, 4 B. & Adol. 312; 1 N. & M. 58, S. C.) Before this statute there was no summary remedy to obtain the restoration of possession, unless there had been a forcible entry; though in one case, that a peaceable entry during the short absence of the occupier, and then upon his quick return excluding him, was equivalent to a forcible entry. (1 Russ. 287; Hawk.

c. 64, s. 26). This statute throughout appears to refer either to cases where a previous forcible entry had been committed by some one, or at all events to a case where the wrong doer, alleged to be guilty of the forcible detainer, was at the same time wrongfully and illegally in possession, and the statute, s. 7, (afterwards enforced by 31 Eliz. c. 11, s. 2), expressly precludes the justices from acting, when the person forcibly detaining has been in possession continuously for three years.

that any doth contrary to this statute, then the said justices or justice shall cause to reseise the lands and tenements so entered or holden as afore, and shall put the party so put out in full possession of the same lands and tenements so entered or holden as before."

1. Statutes relating to.

8 Hen. 6, c. 9.

Precept to sheriff

to return a jury to inquire of tor

cible entries.

Sect. 4. “And also, when the said justices or justice make such inquiries as before, they shall make, or one of them shall make, their warrants and precepts to be directed to the sheriff of the same county, commanding him, on the King's behalf, to cause to come before them, and every of them, sufficient and indifferent persons, dwelling_next_about the lands so entered as before, to inquire of such entries; whereof every Juror to have 40s. man, which shall be impanelled to inquire in this behalf, shall have per annum. land or tenement of the yearly value of forty shillings by year at the least above reprises. And that the sheriff return issues upon every of them at the day of the first precept returnable 20s., and at the second day 408., and, at the third time, 100s., and at every day after, double. And if any sheriff or bailiff within a franchise, having return of the Sheriff's penalty King's writ, be slack, and make not execution duly of the said precepts to him directed to make such inquiries, that he shall forfeit to the King 201, for every default, and moreover shall make fine and ransom to the King."

Sect. 5. "And that as well the justices or justice aforesaid, as the justices of assizes, and every of them, at their coming into the country to take assizes, shall have, and every of them shall have, power to hear and determine such defaults and negligences of the said sheriffs and bailiffs, and every of them, as well by bill at the suit of the party grieved, for himself, as for the King, to sue by indictment only to be taken for the King. And if the sheriff or bailiff be duly attainted in this behalf by indictment, or by bill, that he which sueth for himself and for the King, have the one moiety of the forfeiture of 207., together with his costs and expenses. And that the same process be made against such persons indicted or sued by bill in this behalf, as should be against persons indicted or sued by writ of trespass done with force and arms against the peace of the King.”

Sect. 6. "And moreover, if any person be put out, or disseised of any lands or tenements in forcible manner, or put out peaceably, and after holden out with strong hand; or after such entry, any feoffment or discontinuance in any wise thereof be made, to defraud and take away the right of the possessor; that the party grieved in this behalf shall have assize of novel disseisin, or a writ of trespass against such disseisor; and if the party grieved recover by assize, or by action of trespass, and it be found by verdict, or in other manner by due form in the law, that the party defendant entered with force into the lands and tenements, or them after his entry did hold with force, that the plaintiff shall recover his treble damages against the defendant; and moreover, that he make fine and ransom to the King; and that mayors, justices or justice of peace, sheriffs, and bailiffs of cities, towns, and boroughs, having franchise, have in the said cities, towns, and boroughs, like power to remove such entries, and in other articles aforesaid, rising within the same, as the justices of peace and sheriffs in counties and countries aforesaid have."

Sect. 7. "That they which keep their possessions with force in any lands and tenements, whereof they or their ancestors, or they whose estate they have in such lands and tenements, have continued their possessions in the same by three years or more, be not endamaged by force of this statute."

The above provision of the 6th section is still further enforced by the 31 Eliz. c.11.

for neglect.

Proceedings

against sheriff, &c.

Action against party guilty of detainer.

forcible entry or

They may keep their land by had three years possession."

force, who have

31 Eliz. c. 11, sect. 1. "Whereas there is one good act made and esta- 31 Eliz, c. 11. blished in the eighth year of the reign of King Henry the Sixth, against

such persons as should make forcible entry into lands, tenements, and

1. Statutes

relating to.

No restitution shall be made, if

party indicted has been three years in quiet possession, and his estate not ended.

Costs against party indicted, if his said allegation be found against him.

21 Jac. 1, c. 15. Provisions extended to terms for years and copyholds.

What is a forcible entry.

other possessions, or them should forcibly hold; and one very good proviso or clause, in the said act contained, as ensueth:"

Sect. 2. "That they which keep their possessions with force, in any lands and tenements whereof they or their ancestors have continued their possession in the same by three years or more, be not endamaged by force of the said statute."

Sect. 3. "And whereas divers of the Queen's Majesty's good and loving subjects, and their ancestors, or those whose estate they have, for many years together, above the space of three years or more, have been in quiet possession of their dwelling-houses, and other their lands and possessions; and now of late divers of her Majesty's said subjects, having entries made upon their possessions, having had such quiet and long possession, for disturbing of such enterers, and for keeping of their possession against such enterers, by colour of indictments of forcible entry, or forcible keeping possession, found against them, by means of the oaths of such enterers, have been removed and put out of their dwellinghouses and other their possessions, which they have quietly held for the space of three years together, or longer time, next before such indictments found against them, against the true meaning and intent of the said proviso or clause contained in the said act: For remedy of which inconvenience, and for true declaration and explanation of the law therein, it is ordained, declared, and enacted, that no restitution upon any indictment of forcible entry, or holding with force, be made to any person or persons, if the person or persons so indicted hath had the occupation, or hath been in quiet possession by the space of three whole years together, next before the day of such indictment so found, and his, her, or their estate or estates therein not ended or determined; which the party indicted shall and may allege for stay of restitution, and restitution to stay until that be tried, if the other will deny or traverse the same; and if the same allegation be tried against the same person or persons so indicted, then the same person or persons so indicted to pay such costs and damages to the other party, as shall be assessed by the judges or justices before whom the same shall be tried; the same costs and damages to be recovered and levied as is usual for costs and damages contained in judgments upon other actions."

Doubts having arisen upon the construction of the above acts, whether a lessee for years, or copyholder ousted by the lessor or lord, could have restitution, the same were removed by the 21 Jac. I. c. 15, which enacts, "That such judges, justices, or justice of the peace, as by reason of any act or acts of Parliament now in force are authorized and enabled, upon inquiry, to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered with upon force, or from them withholden by force, shall, by reason of this present act, have the like and the same authority and ability from henceforth (upon indictment of such forcible entries, or forcible withholdings before them duly found) to give like restitution of possession unto tenants for term of years, tenants by copy of court roll, guardians by knights' service, tenants by elegit, statute merchant and staple, of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force."

We will now proceed to notice the construction to be put on these statutes.

II. What is a Forcible Entry.

A forcible entry or detainer is committed by violently taking or keeping possession of lands and tenements, with menaces, force, and arms, and without the authority of the law. (4 Blac. Com. 148).

The 5 Ric. II. c. 8, (ante, 75), defines and prohibits forcible entries,

and the 15 Ric. II. c. 2, (ante, 75), gives jurisdiction to one or more 2. What is a justices.

forcible entry.

Species of

Species of Property.]—It seems clear, that no one can come within the danger of the above statutes, by a violence offered to another in re- property. spect of a way, or such like easement, which is no possession, and there seems to be no good authority that an indictment will lie on this case for a common or office. (1 Hawk. c. 64, s. 31).

But it may be laid down as a general rule, that a person may be indicted for a forcible entry into any such incorporeal hereditament for which a writ of entry will lie, either by the common law, as for rents; or by statute, as for tithes, &c., see 1 Russ. 286; and he might be indicted for a forcible entry into ecclesiastical possessions, such as churches, vicarages, &c. (Id.)

Nature of Right.]—It is immaterial, to create this offence, whether Nature of right. the party had a right to enter or not, for the offence consists in asserting the right in a forcible way to a breach of the peace.

The statutes, however, do not extend to a case where the party ousted had the bare custody of the premises for the defendant; 1 Hawk. c. 64,

8. 32.

But they extend to the forcible ouster of one joint tenant, or tenant in common, by another, for although the entry of such a tenant be lawful, so that no action of trespass will lie against him for it, yet the lawfulness of his entry in no way excuses the violence, or lessens the injury done to his companion; (Id. s. 33, and see 1 Russ. 266). They extend to all cases where the party in possession has some estate therein.

Nature of the Force.]-It seems certain, that if one who pretends a Nature of the title to lands barely go over them, either with or without a great num- force. ber of attendants, armed or unarmed, in his way to the church or market, or for such-like purpose, without doing any act, which either expressly or impliedly amounts to a claim of such lands, he cannot be said to make an entry thereinto. (1 Hawk. c. 64, s. 20, 41).

But it seemeth, that if a person enter into another man's house or ground, either with apparent violence offered to the person of any other, or furnished with weapons, or company, which may offer fear; though it be but to cut or take away another man's corn, grass, or other goods, or to fell or crop wood, or to do any other like trespass; and though he do not put the party out of his possession, yet it seemeth to be a forcible entry. (Dalt. c. 126).

But if the entry were peaceable, and, after such entry made, to cut or take away any other man's corn, grass, wood, or other goods, without apparent violence or force; though such acts are counted a disseisin with force, yet they are not punishable as forcible entries. (Id.)

But if he enter peaceably, and there shall by force or violence cut or take away any corn, grass, or wood, or shall forcibly or wrongfully carry away any other goods there being, this seemeth to be a forcible entry punishable by the statutes. (Id.)

So also shall those be guilty of a forcible entry, who, having an estate in land by a defeasible title, continue with force in the possession thereof, after a claim made by one who had a right of entry thereto. (1 Hawk. e. 64, s. 23).

If one find a man out of his house and forcibly withhold him from returning to it, and send persons to take peaceable possession of it in the party's absence, this, according to the better opinion, is a forcible entry. (1 Russ. 287; 1 Hawk. c. 64, s. 26).

What a mere

trespass or not.

terror necessary.

In general, it seemeth clear that, to denominate the entry forcible, it Actual violence or ought to be accompanied with some circumstances of actual violence or terror; and therefore that an entry, which hath no other force than such as is implied by the law, in every trespass whatsoever, is not within these statutes. (1 Hawk. c. 64, s. 25; R. v. Smith, 5 C. & P. 201).

2. What is a forcible entry.

Strong hand.

Violence.

Terror,

R. v. Wilson and eleven others.-The defendants were indicted for a forcible entry and detainer at common law. The first count stated, that they, with force of arms, unlawfully and injuriously, and with a strong hand, entered, &c. &c. The third count was the same as the first, as to those words; the second and fourth, the same as the first and third, excepting that they omitted the words with a strong hand. There was a demurrer to all these counts; and, in support of the demurrer, it was contended, that a private trespass only was charged upon the face of the indictment, and not a public breach of the peace indictable. Against the demurrer it was admitted that the second and fourth counts were not maintainable. And by the court these points were determined :— A mere trespass, which is the subject of a civil action, and where the words vi et armis are a matter of form, cannot be converted into an indictable offence;

That the offence of forcible entry is indictable at common law;

In an indictment on the statutes, it is necessary to state the interest of the prosecutor;

It is sufficient to state the same degree of force in an indictment at common law, and in an indictment upon the statutes; but there must be stated that degree of force and violence in fact which constitutes the offence;

The words manu forti mean something more than a common trespass. It is not sufficient to charge the defendant with having entered vi et armis.

No particular technical words are necessary in such an indictment at common law; all that is required is, that it should appear by the indictment such force and violence have been used as constitute a public breach of the peace.

And the first and third counts were adjudged good. And at another day Lord Kenyon, C.J., added, that the court desired that their decision might not be considered as a precedent in other cases to which it did not apply. And that what Hawkins says, (ante, p. 73, 74), that at common law the party may enter with force into that to which he has a legal title, was left untouched by this case, for that here the indictment stated the defendants to have unlawfully entered, and therefore the court could not intend that they had any title. (R. v. Wilson, 8 T. R. 357; and see R. v. Smyth, 5 C. & P. 201).

As to the matter of violence; it seems to be agreed, that an entry may 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 the manner of the entry, as by breaking open the doors of the house, whether any person be in it or not, especially if it be a dwelling-house, and perhaps also by an act of outrage after the entry, as by carrying away the party's goods? but it seems that an entry is not forcible by the bare drawing up of a latch, or pulling back the bolt of a door, there being no appearance therein of its being done by 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. (1 Hawk. c. 64, s. 26; Com. Dig. Forcible Entry, A. 3).

It is clear that an actual assault is not necessary to a forcible entry or detainer. (Milner v. Maclean, 2 C. & P. 17).

In respect of the circumstances of terror; it is to be observed that whenever a man, either by his behaviour or speech at the time of his entry, gives those who are in possession 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 cause such a terror by carrying with him such an unusual number of attendants, or by arming himself in such a manner as plainly intimates a design, or by actually threatening to kill, maim, or beat those who shall continue in possession, or by giving out such speeches as plainly imply a purpose of using force, as if one