CHAPTER XVII. FORCIBLE ENTRY AND DETAINER. I. CHARACTER OF OFFENCE. Forcible exclusion of another from his lands and tenements is an of- Gist of offence is the violence, § 1085. Wife may be so indicted against her husband, § 1088. So as to tenant in common ejecting So as to third person dispossessing Real estate, corporeal or incorporeal, To forcible trespass on personalty And so to forcible entry, § 1093. Rule does not apply to out-houses, Entry by trick is not forcible, § 1096. Forcible exclusion of another from his Forcible continuance may be forcible entry, § 1098. When there is right of entry, vio lence is essential to offence, § 1099. Tenant at will cannot be expelled by force, § 1100. Owner may forcibly enter as against Legal right to enter is essential to At common law possession is neces sary to prosecution, § 1104. Indictment must contain technical For common law offence, possession only need be averred, § 1108. Possession must be described as in ejectment, § 1109. Entry and detainer are divisible, § 1110. Title is necessary to restitution, § 1111. Indictment for forcible trespass must aver violence, § 1112. Practice to sustain summary convictions, § 1113. I. CHARACTER OF OFFENCE. § 1083. WHEN a man violently takes and keeps possession of any lands and tenements occupied by another, with menaces, force and arms, and without the authority of law, he be indicted at common law, for forcible tenements entry and detainer. To enter, with intent to keep possession, constitutes the offence of forcible entry. Of this there may be a conviction without proving a for lands and is an of fence at common law. may cible detainer.1 A forcible detainer is where a party, having wrongfully entered upon any lands or tenements, detains such lands and tenements in a manner which would render an entry upon them for the purpose of taking possession forcible.2 In many of the States, through the substitution of statutory remedies giving the injured party summary relief by recourse to a civil tribunal, criminal procedure in such cases has fallen into disuse.3 1 4 Bla. Com. 148; Russ. on Cr. (6th Am. ed.) 303; Henderson's case, 8 Grat. 708. 2 Steph. Dig. C. L. art. 79. 3 In Massachusetts (Rev. Stats. c. 104), the person thus forcibly expelled or kept out may take, from any justice of the peace, a writ in the form of an original summons (Ibid. § 4), and the suit thus commenced is subjected to the same incidents as accompany other civil actions before justices of the peace. Ibid. § 5. Under this statute it has been held that a mere refusal to deliver possession, when demanded, will not warrant the process for forcible entry and detainer; but the possession must be attended with such circumstances as might excite terror in the owner, and prevent him from claiming his rights; such as apparent violence offered in deed or word to the person, having unusual offensive weapons, or being attended by a multitude of people. Com. v. Dudley, 10 Mass. 403. Where a writ of restitution has been executed, and the proceedings are afterwards quashed upon certiorari, a new writ of restitution may be awarded. Com. v. Bigelow, 3 Pick. 31. The process, it is said, will not lie against one who has merely entered into land under a levy upon it, as the property of a tenant in possession; Ibid.; nor for the lessor of a tenant at will against a stranger for expelling the tenant. Ibid. In New York, though the statutory remedy (2 R. S. 507) presents some of the features of a criminal prosecution, it may be properly regarded as a civil suit; and while some of the decisions under it are applicable to forcible entry and detainer at common law, it can scarcely be considered as forming one of the subjects of ordinary criminal jurisdiction. By it is provided that when any person is forcibly put out or kept out of possession, he may be restored by making a complaint to a judge of the county court, who shall thereupon summon a jury of twenty-four inhabitants of the county, who, on being sworn a true inquisition to make, are to proceed to examine witnesses on oath, to be administered by the judge, and who are to make and sign their inquisition before the said judge, and deliver the same to him. If, in such inquisition, it is found that either the entry or the detainer of the defendant was forcible, he may traverse the inquisition; and on such an issue a traverse jury is to be specially convened. The complaint to be made to the judge is to be accompanied with an affidavit of the forcible entry and detainer, and that the complainant has " an estate of freehold or for a term of years in the premises then subsisting, or some other right to the possession thereof, stating the same;" and the judge is thereupon to issue a precept, &c. By the 11th section of the act, it is pro § 1084. The following English statutes have been in several States held to be part of the common law : Modification of common law by statutes. 5 RIC. II. st. 1, c. 8. Entry with Strong Hand and Multitude of People.— "And also the king defendeth, that none from henceforth make any entry into any lands and tenements but vided that on the trial of the traverse the complainant shall only be required to show, in addition to the forcible entry or detainer complained of," that he was peaceably in the actual possession of the premises at the time of a forcible entry, or was in the constructive possession of the premises at the time of a forcible holding out." The only defence allowed to the defendant on the traverse is the denial of the forcible entry or forcible holding out, or showing that he or his ancestors, or those whose estate he has, have been in the quiet possession of the premises three whole years together next before the inquisition found, and that his interest is not determined. People v. Van Nostrand, 9 Wendell, 62. Where it was objected that as the indictment alleged a possession in fee simple in the relator, the complainant was bound to show such an estate on the trial; it was determined that since the Revised Statutes the nature of the estate had become immaterial; possession was sufficient; and the allegation of the estate, in addition to the possession, could be rejected as surplusage. Ibid. The Revised Statutes, it was said in the same case, have essentially changed the law from what it was before; the decided cases before had narrowed the remedy to cases where the relator was seised of a freehold, or possessed of a term for years, and the consequence was, that in every other instance of a forcible entry and detainer, so far as this remedy was concerned, the wrong doer, though he entered by force and without right, was preferred to the quiet occupant thus dispossessed; for if the latter could show on the traverse that the former had no estate within the purview of these acts, as thus construed by the courts, he was entitled to the verdict. People v. Van Nostrand, 9 Wendell, 52. The act gives the remedy provided by it, as well to tenants for years and guardians, as to such as have estate of freehold. People v. Rickert, 8 Cowen, 226. Though a lease by parol be for a longer term than three years, and so void for the term, within the statute of frauds, yet the tenant entering has an interest from year to year, regulated in every respect by the parol demise, except as to the term. Ibid. Proof of actual possession is sufficient to support the allegation in the inquisition, that complainant was possessed in fee simple. People v. Van Nostrand, 9 Wendell, 50. The petit jury may find the defendant guilty of the detainer only, for which a writ of restitution will equally go as if the conviction had reached the whole indictment, and the assessment of damages will be in proportion to the degree of guilt or injury. People v. Anthony, 4 Johnson, 198; People v. Rickert, 8 Cowen, 226. As the statutes of both Pennsylvania and Virginia are simply declaratory of the common law, as modified by 5 Rich. 2, st. 1, c. 8, and 21 Jac. 1, c. 15, it is unnecessary to do more at present than to give their provisions, in case where entry is given by the law, and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy manner; and if any man from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will." 1 referring to another head for the adjudication given to them by the courts. See 2 Pa. L. J. 391, for a learned article on the law as obtaining in Pennsylvania. PENNSYLVANIA. Forcible Entry. If any person shall, with violence and a strong hand, enter upon or into any lands or buildings, either by breaking open doors, windows, or other parts of the house, or by any kind of violence or other circumstances of terror, or if any person, after entering peaceably, shall turn out by force or by threats, or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry, and, on conviction, shall be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements entered as aforesaid. Rev. Laws, 1860, Bill I. sect. 21. Detainer. If any person shall, by force and with a strong hand, or by menaces or threats, unlawfully hold and keep the possession of any lands or tenements, whether the possession of the same were obtained peaceably or otherwise, such person shall be deemed guilty of forcible detainer, and upon conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements unlawfully detained as aforesaid: Provided, That no person shall be adjudged guilty of forcible detainer, if such person, by those under whom he claims, has been in peaceable possession for three years next immediately preceding such alleged forcible detention. Ibid. sect. 22. VIRGINIA. Forcible Entry. — None shall enter into any lands or tenements but in case where entry is given by law, and in such case not with strong hand, nor with multitude of people, but only in a peaceful and easy manner; and that none who shall have entered in a peaceful manner shall hold the same afterwards against the consent of the party entitled to the possession thereof. R. C. chap. 115, § 1. 1 By stat. 8 Hen. 6, this statute is extended to cases where the entry was peaceable but the detainer forcible; and restitution is given in such cases. Rob. Dig. 284. Both statutes are in force in Pennsylvania. Van Pool v. Com. 13 Penn. St. 392. By 15 Rich. 2, there is a summary power given to justices to convict on view. This as well as the preceding statutes is in force in Pennsylvania and Maryland. See Roberts's Digest; Van Pool v. Com. supra; Kilty's Report, &c., 227-36. 21 JAC. I. c. 15. Restitution to be awarded." That such judges, justices, or justices 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 upon with 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 knight's services, 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." Gist of offence is the violence. § 1085. The violent and forcible taking or keeping of another man's property is, apart from the operation of particular statutes, a breach of the public peace, punishable in a criminal court by indictment. The gist of the of fence is the violence; and from the peculiar sanctity attached by the common law to every man's dwelling-house, violence offered to it is distinguished as a substantive offence, and punished with peculiar severity. Forcible entry and detainer, as an indictable offence, continues, therefore, to be punished in the courts even of those States where the injured party is furnished with the most summary civil remedies.1 Nor, notwithstanding occasional hesitation, can its continued common law efficiency be disputed. At common law, to support an indictment there must be a breach of the peace. But by the 5 Ric. 2, st. 1, c. 8, and 21 Jac. 1, c. 15, the common law, as we have seen, received a modification, which, in many of the States, has been considered as a constituent part of the offence. 1 R. v. Wilson, 8 T. R. 357; Newton v. Harland, 1 Man. & Gran. 644; Harding's case, 1 Greenl. 22; Langdon v. Potter, 3 Mass. 215; Com. v. Taylor, 5 Binney, 277; State v. Mills, 2 Dev. 420; State v. Speirin, 1 Brev. 119; Cruiser v. State, 3 Harr. (Del.) 205. 2 Com. v. Toram, 5 Penn. L. J. 296; 2 Pars. 411. 3 R. v. Wilson, 8 T. R. 357; R. v. Bake, 3 Burr. 1731; Com. v. Dudley, 10 Mass. 403; Henderson's case, 8 Grat. 708. 4 Harding's case, 1 Greenl. 22; Roberts's Digest, 283. |