say he will keep his possession in spite of all men, or the like. (Id. s. 27).

But it seems 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. (Id. s. 28).

However, it is clear that it may be committed by a single person, as well as by twenty. (Id. s. 29).

3. What is a
forcible
detainer.

But, nevertheless, all those who accompany a man, when he makes a Who liable to. forcible entry, shall be judged to enter with him, whether they actually come upon the lands or not. (Com. Dig." Forcible Entry," (A 3); 3 Bac. Ab. "Forcible Entry," (B.).

And all persons compos mentis, and who might in fact commit any crime, may be guilty of this offence; and consequently an infant, or even a married woman-(R. v. Smith and others, M. & Rob. 155; 5 C. & P. 201, S. C., and this even by forcibly entering into her husband's house) may be liable to be proceeded against.

But he who barely agrees to a forcible entry made to his use without his knowledge or privity, is not within the statutes, because he did not concur in or promote the force. (1 Hawk. c. 64, s. 24). As to when the offence amounts to a riot, see "Riot," Vol. V.

Riot.

III. What is a Forcible Betainer.

detainer.

The entry must
have been unlaw-

ful.

It seemeth certain, that the same circumstances of violence or terror, What a forcible which shall make an entry forcible, will make a detainer forcible also. And a detainer may be forcible, whether the entry were forcible or not. (1 Hawk. c. 64, s. 32). But the entry must have been unlawful to constitute the offence of a forcible detainer. See R. v. Oakley, (4 B. & Ad. 307), where a conviction was quashed for not stating that the entry was unlawful; and Denman, C. J., there said, "I cannot think that the legislature meant that the act of a man in maintaining his own rightful possession with force against a wrong-doer should authorize the justices to turn him out;" and Park, J., stated the inclination of his opinion to be, "that the statute only applied when the original entry was unlawful;" and he observed that it would not necessarily follow from that decision that the statute 8 Hen. VI. c. 9, does not apply to the case of a tenant at will or for years holding over after the will has been determined, or the term expired, because the continuance in possession afterwards may amount in judgment of law to a new entry; and as to that point, he referred to Hark. P. C., book 1, c. 64. Taunton, J. expressed his opinion, that the statute Henry VI. only applies to a forcible detainer preceded by an unlawful entry; and Patteson, J. also considered that an illegal entry was essential, and that if the statute were not confined to such cases, the consequence would be that a person who had even two years' rightful possession of land might be liable under any circumstances to be fined and imprisoned for forcibly maintaining that possession against a wrongdoer. He also observed that there might be good reasons for confining the summary jurisdiction of justices to cases where there had originally been a forcible entry, for it might be hard to allow a man to be turned out of possession by so summary a course, for detaining with force that laud to which he might be rightfully entitled. (Id. p. 311 (a)).

5. Indictment for and restitution after, &c.

Three years' possession.

Also in a conviction for a forcible detainer there must be an adjudica tion of an unlawful entry. (R. v. Wilson, 5 N. & M. 164; 3 Ad. & Ell 817).

No attempt by the former possessor to re-enter is necessary to consti tute a forcible detainer. See 1 Russ. C. 288.

The 8 Hen. VI. c. 9, as we have seen ante, 78, does not apply to person who has been in possession for three years by himself, or an other under whom he claims; but a person in quiet possession for thr years, and then disseised by force, and restored, cannot afterwards deta with force within three years after his restitution, for his possession w interrupted. (Com. Dig. Forcible Detainer, (B 2)).

By 31 Eliz. c. 11, we have seen, (ante, 78), no restitution is to given on an indictment of forcible entry and detainer where the par has been three years in quiet possession, before the indictment four and his estate not determined. See further as to this, post, 85, 86.

Action for.

IV. Action at Law for.

The 8 Hen. VI. c. 9, s. 6, enacts, that if any person be put out or seised of any lands or tenements in forcible manner, or put out pea bly and after holding out with strong hand, the party grieved shall t assize of novel disseisin, or writ of trespass against the disseisor; ar he recover, he shall have treble damages, and the defendant more shall make fine and ransom to the king.

The Party aggrieved shall have Assize, &c.]-But this action, bein the suit of the party, and only for the right, is only where the entr the defendant was not lawful; for if a man entereth with force, w his entry is lawful, he shall not be punished by way of action; bu he may be indicted upon the statute, for the indictment is for the and for the king; and he shall make fine to the king, although his be never so good. (Dalt. c. 129; ante, 73, n.).

The act is applicable only to parties in possession as freeholders does not apply to persons in possession as tenants from year to ye others. (Cole v. Eagle, 8 B. & C. 409).

Treble Damages.]-And this he shall recover as well for the r occupation as for the first entry: and before the 5 & 6 Vict. c. 97 he was entitled to recover treble costs also: for the word damag cludeth costs of suit. (1 Inst. 257; 10 Co. 115; Skier v. Atkin Vent. 22; sed vide Hard. 152). But since that act he will recove such an amount of costs as will fully indemnify him against then

Indictment at

statutes.

V. Endictment for and Restitution after Indictmen The party grieved, if he will lose the benefit of his treble damag sessions under the costs, may be aided and have the assistance of the justices at the sessions, by way of indictment on the statute of 8 Hen. VI.; which found there, he may be restored to his possession, by a writ of 1 tion granted out of the same court to the sheriff if the cour fit to grant it. (Dalt. c. 129; R. v. Harland, 8 A. & E. 826; 17 93, S. C.).

Elsewhere.

It has been said that if the indictment be not before the jus

or forestalling or rescuing the distress.
See Com. Dig. Forcible Detainer, (B
2). So, of a mortgagor detaining with
force after the mortgage is determined,

and such like. (Id. Ibid.)
mere denying possession in the
would not amount to a forcible
(Id.)

for and restitution

sessions, restitution of the property cannot be granted, for justices of 5. Indictment over and terminer or general gaol delivery, though they may inquire of forcible entries, and fine the parties, yet cannot award a writ of restitution. (See 3 Bac. Ab. Forcible Entry, (F); 1 Hawk. c. 64, s. 36). But this seems questionable. (See 1 Russell on Crimes, 292, and note). At all events, if the indictment be removed into the Queen's Bench by certiorari, that court may give restitution. (Post, 92).

after, &c.

An indictment will lie at common law for a forcible entry or detainer, At common law. although it is generally brought under the statutes. (See Per Wilmot, J., in R. v. Bake, 3 Burr. 1731). But it seems that the evidence of the forcible entry, upon this indictment, must be stronger than is required to support an indictment on the statutes; that is to say, there must be proof of such a force as constitutes a public breach of the peace. (R. v. Wilson, 8 T. R. 357. And see R. v. Bake).

If a forcible entry or detainer shall be made by three persons or more, When indictable it is also a riot, and may be proceeded against as such, if no inquiry as a riot. hath before been made of the force. (Dalt. c. 44. See post," Riot,"

Vol. V.).

In the caption of an indictment on the statutes, it will be sufficient Form of indictto say justices assigned to keep the peace of our Lady the Queen, without ment. showing that they have authority to hear and determine felonies and trespasses; for the statute enables all justices of the peace, as such, to take such indictments. (1 Hawk. c. 64, s. 36).

force.

It must appear on the face of the indictment that the entry was with Statement of more force than a common trespass; at least, a public breach of the peace must appear. (R. v. Wilson, 8 T. R. 361, 362). An averment, that the defendant entered with a strong hand will suffice; (Styles, 136; Cro. Eliz. 461); but the mere words "force and arms" will not. (Id). If the word "disseised," is inserted, it is not also necessary to use the terms expelled or unlawfully, for the last is superfluous, and the first is implied in the word disseised; but, unless the word disseised be used, the indictment at common law should contain the word "expelled." (R. v. Wilson, 1 T. R. 357; Andrews v. Lord Cromwell, Cro. Jac, 32; Freiston v. Shellito, Yelv. 165). It appears also to be sufficient to allege that the defendant on such a day entered and disseised the prosecutor, without adding the words then and there to the disseisin. (Bande's case, Cro. Jac. 41; Ford's case, Id. 151).

An indictment for a forcible detainer is good, without shewing that the defendant's original entry was forcible, (Sir W. Fitzwilliam's case, Cro. Jac. 19); but it seems clear that an original unlawful entry must be shewn, see ante 81. It is said, that a forcible detainer need not be laid as against the peace; but it is not usual to omit this allegation. (Andrewes v. Lord Cromwell, Cro. Jac. 32; Ford's case, Id. 151).

The tenement in which the force was made must be described with convenient certainty; and the indictment must set forth that the defendant actually entered and ousted the party grieved; and continueth his possession (a) at the time of finding the indictment; otherwise he cannot have restitution, because it doth not appear that he needeth it. (1 Hawk. c. 64, s. 37, et seq.). If it merely state that the defendant forcibly entered a certain "tenement," which may signify any thing which may be held, and even an incorporeal hereditament, it will be defective. (1 Seza. Cass, 357; Doe d. Bradshawe v. Plowman, 1 East, 441; Vice v. Burton, 2 Str. 891). So, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or certain lands belonging to a house, is bad, for the same certainty is required as in a declaration in ejectment. (1 Hawk. c. 64, s. 37).

But an indictment may be void as to such part of it as is uncertain

(a) If a man's wife, children, or servants, do continue in the house or upon the land, he is not ousted of his pos

session; but his cattle being upon the
ground do not preserve his possession.
(Dalt. c. 132).

Statement of tenement, &c. Statement of defendant being in

possession.

5. Indictment for and restitution after, &c.

Statement of party's interest in premises,

Ouster and continuance thereof.

Evidence.

in this respect, and good for so much as is certain; thus, an indictment for forcible entry into a house and certain acres of land, may be quashed as to the land and stand good as to the house. (3 Bac. Abr. “Forcible Entry," (E); and see further, 1 Russ. C. 290; 8 B. & Cress. 70; 1 M. & P. 330).

Where the indictment is not at common law, it must show the estate of the party disseised.

An indictment for forcible entry was quashed, for not setting forth that the party was seised or disseised, or what estate he had in the tenement; for if he had only a term for years, then the entry must be laid into the freehold of A. in the possession of B. (R. v. Griffith, 3 Salk. 164; R. v. Bake, 3 Burr. 1732; see R. v. Bowser, 8 Dowl. 128).

An indictment on the 8 Hen. VI. must state that the place was the freehold of the party grieved at the time of the injury; but it seems to be sufficient on the statutes of Richard the Second, to show who had the possession. (1 Hawk. c. 64, s. 38). So, an indictment under 21 Jac. I. c. 25, must allege such an estate in him as that statute requires. (1 Hawk. c. 64, s. 38; Cald. 415).

An indictment for a forcible entry into a copyhold is bad, if it only state that the copyhold was held at the will of the lord, according to the custom of the manor, without saying "by copy of court-roll." (Anon. Ventr. 89).

It has been held, that, in an indictment under the 8 Hen. VI. the tenure of the estate will be implied from the word disseised, without other words of freehold. (Wroth's case, 3 Leon. 102; and see Palm. 277).

An averment in the indictment merely that the prosecutor was "seised," is sufficient. (Rex v. Dillon, 2 Chit. Rep. 314).

An indictment at common law, stating that the prosecutor was possessed, will suffice. (Rex v. Wilson, 8 T. R. 360).

Unless the particular statute require it, it seems unnecessary to show the quantity of estate which the party injured had in the land, or by what title he claims it; for it is not the title, but the possession, which is in question. (Id. And see 2 Roll. Abr. 80, pl. 3; contra, Anon. 1 Ventr. 306). And where more is stated than is necessary to prove the offence laid in the indictment, such unnecessary matter need not be proved. Thus, in an indictment for a forcible entry on the possession of a lessee for years, proof of the force and of such possession is sufficient, although the indictment allege that the premises were the freehold of A., and such allegation is not proved. (Rex v. Lloyd, Cald. 415).

Where the indictment charged that the defendant into one messuage. &c. then and there being in the possession of W. P., "he the said W.P. then and there being also seised thereof,” with force and arms did enter, &c., this was held, after conviction, a sufficient averment of the present seisin of W. P., so as to warrant the court in awarding restitution, (Rex v. Hoare, 6 M. & Sel. 266).

The indictment, to entitle the party to an award of restitution, must state not only the ouster, but also the defendant's continuance in possession at the time of the finding the indictment. (1 Hawk. P. C. c. 64, s. 41). But it is no part of the offence described by the statute which mentioneth forcible entry merely.

Evidence.]-The material averments in the indictment must be alleged as proved. In an indictment on the statutes, proof that the prosecutor holds colourably as a freeholder or leaseholder, will suffice; for the court will not on 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. (Per Vaughan, B., Rex v. Williams, Monmouth Summer Assizes, 1828; Talf. Dick. Sess. 239; and see Jayne v. Price, 5 Taunt. 326; 1 Marsh. 68, &c.). Proof that the prosecutor was in the actual occupation of the premises, or in the perception of the rents and profits,

is sufficient prima facie evidence of his seisin. (See Jayne v. Price, 5 5. Indictment Taunt. 326; 1 Marsh. 68). But the presumption may be rebutted, either by direct evidence of his having a less estate, or by evidence of circumstances from which the jury may presume it. (Ib. Jervis Arch.) 9 ed., 611).

for and restitution after, &c.

In all cases which admit of restitution, the prosecutor or the tenant Witnesses. whose land has been entered upon or withholden by force, is not a competent witness, for he has a direct interest in the verdict. (See Rex v. Williams, 2 B. & C. 549; 4 M. & R. 471, S. C.; Rex v. Bevan, R. & M., N. P. C. 242).

Punishment.]—The statute 5 Rich. II. stat. 1, c. 8, (ante, 75), im- Punishment. poses a punishment of imprisonment and ransom at the Queen's will; and, by the common law, a fine or imprisonment may be imposed on conviction for a forcible entry at common law. (See Cald. 415).

Restitution.]-The foregoing statutes show in what cases restitution Restitution. may be awarded. "The same justice or justices before whom an indictment for forcible entry or detainer shall be found, may award restitution, but no other justices, except those before whom the inquest was found, can award restitution, unless the indictment be removed by certiorari into the Queen's Bench, and that court, by the plenitude of its power, can restore, and award a writ of restitution to the sheriff for that purpose, because it is supposed to be implied by the statute, on the ground, that whenever an inferior jurisdiction is erected, the superior jurisdiction must have authority to put it in execution. (1 Russ. C. 291; 3 Bac. Ab. Forcible Entry (F); Dalton, c. 44, p. 98).

It has been said that justices of oyer and terminer, or general gaol delivery, cannot award a writ of restitution. (Id.) But this seems doubtful. (See 1 Hawk. c. 64, s. 51; 1 Russ. C. & M. 292, and n.)

It is purely in the discretion of the court or judge to award the restitution after the indictment has been found by the grand jury; and if refused, the court of Queen's Bench has no jurisdiction to review the decision. (R. v. Harland and others, 1 P. & D., 93; 8 A. & Ell., 826, S. C.)

The restitution can be to such property only for which a writ of entry will lie. (See 1 Hawk. c. 64, s. 45; ante, 79).

It can only be to him who was put out of actual possession, and not to one who was only seised in law. (Rex v. Marrow, C. T. Hardw. 174). He must be alive, and his interest continue up to the time of the actual execution of the writ of restitution; if such be not the case, the defendant may show the fact, when the writ is prayed for, or apply to the court to quash the writ, or give an indemnity to the sheriff, and get him to return to the writ the fact as to the death or discontinuance of interest.

The restitution must be awarded within three years after the inquisition. (Rex v. Harris, 3 Salk. 313). By the 8 Hen. VI. c. 9, and 31 Eliz. c. 11, (ante, pp. 76, 77), we have seen, that any one indicted on these acts, may allege quiet possession for three whole years, so as to stay the award of restitution. In such a case the possession must have continued without interruption during three whole years next before the indictment. (3 Bac. Ab. Forcible Entry, (G.); 1 Hawk. c. 64, s. 53). And the possession must be of a lawful estate. (Id.) As to the plea and costs under this, see post, 91, and 1 Russ. C. 293.

A supersedeas of the restitution may be awarded by the same justices who awarded the restitution, or by the court of Queen's Bench, on a certiorari. (3 Bac. Ab. Forcible Entry (G.); 1 Hawk. c. 64, s. 51; 1 Russ. 293). And any execution of restitution executed after the teste of the certiorari is avoided, but the justices are not brought into contempt without notice. (3 Bac. Ab. Forcible Entry, (G); 1 Hawk. c. 64, 65. 61, 62).