Statutory quires less

offence re

force than

common

§ 1086. There is a distinction to be observed between forcible entry, &c., as it existed and still exists at common law, and forcible entry, &c., under the above given statutes. In the first place, more force is necessary to constitute the former offence than the latter; 1 in the second place, in an indictment for the latter offence it is necessary to set forth either a freehold or a leasehold in the prosecutor, while in the former, an averment of mere possession is sufficient. Keeping these distinctions in mind, the construction given by the courts to the statutory offence will apply with equal force to the offence at common law.

law, but hold or

either free

leasehold

title.

Any per

son for

cibly putting out from pos

another

session may be

§ 1087. Any one who forcibly puts out and keeps out another from possession may be indicted for forcible entry and detainer. Hence, as will hereafter be observed, a landlord who violently dispossesses a tenant whose lease has expired may be guilty of forcible entry. But where his wife is in possession,3 or where his mansion is detained by one having a bare charge, a man may break indicted. open the doors and forcibly enter without exposing himself to a criminal prosecution. "It is immaterial whether the person making such an entry had or had not a right to enter, provided that a person who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry."

"under cir

Wife may

be so in

§ 1088. It seems that though a woman cannot be mulcted in damages for a trespass on her husband's property, she may, "if she comes with a strong hand," cumstances of violence amounting to a breach of the public peace," be convicted of a forcible entry."

dicted as against her

husband.

§ 1089. A joint tenant, or tenant in common, may offend against the statutes by forcibly ejecting or holding out So as to his companion.7

1 R. v. Wilson, 8 T. R. 357; R. v. Bake, 3 Burr. 1731; Com. v. Dudley, 10 Mass. 403; Archbold's C. P. 569, and cases cited infra, §§ 1100, 1101.

2 R. v. Wilson, 8 T. R. 357; Harding's case, 1 Greenl. 22; State v. Speirin, 1 Brev. 119; State v. Mills, 2 Dev. 420. Infra, § 1111.

Morris v. Bowles, 1 Dana, 97.

tenant in common

1 Russ. on Cr. 6th Am. ed. 307. See infra, § 1097-1100.

5 Steph. Dig. C. L. art. 79.

• R. v. Smyth, 5 C. & P. 201; 1 M. & Rob. 155.

71 Russ. on Cr. 6th Am. ed. 307; Com. v. Oliver, 2 Par. 420; Burt v. State, 2 Tr. Con. R. 489.

ejecting his companion.

Thus, where one of a board of trustees put certain persons in possession of a church, which was closed by order of a majority of the board of trustees, it was held those persons were guilty of a forcible entry and detainer.1

So as to third person dis

§ 1090. An indictment will lie against a third person who intrudes himself on land, or enters after judgment against a former intruder, and the sheriff, who is in possessing possession of the writ of restitution, may turn him out of possession.2

officer of

law.

Real estate, corporeal or

§ 1091. As a general rule, an indictment for forcible entry lies to redress an expuision from any real estate, whether corporeal or incorporeal; and it has been said that the incorporeal, process can be maintained against any one, whether a terre-tenant or a stranger, who should forcibly disturb tected. a landlord in the enjoyment of his rent, or a commoner in the use of his common.3 But a way, ferry, or similar easement, is not the subject of this process.

may be

thus pro

A forcible entry may be made on land, whether woodland or otherwise, within the bounds of a tract possessed by another, although the whole tract be not enclosed by a fence or cultivated.

sential.

§ 1092. Distinct from forcible entry and detainer as a statuTo forcible tory offence, yet bearing close relations to forcible entrespass on try and detainer at common law, stands forcible trespersonalty force is es- pass on personalty, - distinguishable, however, from forcible entry and detainer at common law by two features: (1.) The latter must be directed against real interests exclusively, while the forcible trespass on personalty has for its object chattels of all classes; and (2.) Forcible entry and detainer at common law does not necessarily involve violence offered a person actually in possession, while such violence to such person is necessary to constitute forcible trespass to personalty a common law offence. It is virtually but an aggravated

1 Com. v. Oliver, 2 Par. 420. 2 State v. Gilbert, 2 Bay, 355. 81 Russ. on Cr. (5th Am. ed.) 303. See State v. Bordeaux, 2 Jones N. C. 241; State v. Caldwell, 2 Jones N. C. 468. Compare, as qualifying text, authorities cited infra, § 1103.

Ibid.; 1 Russ. on Cr. (5th Am. ed.) 303.

5 Rees v. Lawless, Little's Cas. (Ky.) 184.

• Penn. v. Robison, Addis. 14, 17.

assault, though, from the peculiar texture of the offence, the word assault need not appear in the indictment.1

To forcible exceeding

entry force

trespass is neces

§ 1093. On an indictment at common law for forcible entry, it is necessary to prove that the defendant entered with such force and violence as to exceed a bare trespass, and to give reasonable grounds for terror;2 but where a party entering on land in possession of another, either sary. by his behavior or speech, gives those who are in possession just cause to fear that he will do them some bodily harm if they do not give way to him, his entry is deemed forcible, whether he causes the terror by carrying with him an unusual number of attendants, or by arming himself in such a manner as plainly to intimate a design to back his pretensions by force, or by actually threatening to kill, maim, or beat those who continue in possession, or by making use of expressions plainly implying a purpose of using force against those who make resistance.3

A strong man went to the house of another, in his absence, and remained there against the will of the wife, using insulting language; the husband returned and ordered the intruder out, but he refused to go for some time, and then went into the yard, with a club in his hand, threatening and cursing. It was held, that this was sufficient to support an indictment for a forcible entry, in the presence of the husband, and a detainer.1

An entry "with strong hand," or "with multitude of people," is the offence described in the statute. It is not necessary, however, when the latter alternative is relied on that the entry

1 R. v. Gardiner, 1 Russ. on Cr. 53; State v. Mills, 2 Dev. 420; State v. Phipps, 10 Ired. 17; State v. McDowell, 1 Hawks, 449. See infra, §

1112.

2 R. v. Smyth, infra; R. v. Deacon, R. & M. 27; Com. v. Keeper of Prison, 1 Ashm. 140; Com. v. Conway, 1 Brewst. 509; Rees v. Com. 2 Brewst. 1100; State v. McClay, 1 Harring. 520, and cases cited at close of this note. That any force in a dwellinghouse likely to produce terror may constitute the offence see R. v. Smyth, 5 C. & P. 201; 1 M. & R. 156; R. v. Deacon, R. & M. (N. P.) 27; Hard

ing's case, 1 Greenl. 22; Penn. v. Dixon, 1 Smith's Laws, 3; Com. v. Taylor, 5 Binn. 277; People v. Smith, 24 Barb. 16; State v. Pollok, 4 Ired. 305; State v. Tolever, 5 Ired. 452; State v. Godsey, 13 Ired. 348; State v. Ross, 4 Jones (N. C.) 315, and cases cited supra.

8 1 Russ. on Cr. 5th Am. ed. 309; Penn. v. Robison, Add. 14, 17; Resp. v. Devore, 1 Yeates, 501; State v. Pollok, 4 Ired. 305; Bennett v. State, 1 Rice Dig. 340; State v. Cargill, 2 Brev. 445. Infra, § 1099.

+ State v. Caldwell, 2 Jones (N. C.),

468.

should be committed by a very great number of people; three persons, following the analogy of riot, have been held enough to sustain the averment of "multitude."1 And even where the entry is lawful, it must not be made with a strong hand, or with a number of assailants; where it is not lawful, it must not be made at all.2

Force may

4

§ 1094. An entry by breaking the doors or windows, &c., whether any person be in the house or not, especially be inferred if it be a dwelling-house, is a forcible entry within the from facts. statute. So an entry, where personal violence is done to the prosecutor, or any of his family or servants, or to any person or persons keeping the possession for him ; or even where it is accompanied with such threats of personal violence (either actual or to be implied from the actions of the defendant, or from his being unusually armed or attended, or the like) as are likely to intimidate the prosecutor or his family, and to deter them from defending their possession,5 is a forcible entry within the statute. The issue is, Was there force sufficient to alarm, so as to coerce surrender of possession, or to provoke a breach of the peace?

Rule does not apply

6

§ 1095. It has been intimated that as possession of a dwelling-house implies possession of its appurtenances, it is not indictable for a person who has peaceably and legally obtained possession of a dwelling-house forcibly to break open an out-house appertaining thereto.7

to outhouses

when

house has been peaceably entered.

But when the property of the defendant in the execution is in the house of a third person, or in a smokehouse within the curtilage of said third person, a demand for admittance by the officer holding the execution, and a refusal upon the part of the person holding the property, are necessary

1 State v. Pollok, 4 Ired. 305; Dudley, 10 Mass. 403; State v. PolState v. Simpson, 1 Dev. 504. lok, 4 Ired. 305; State v. Armfield,

2 Burt v. State, 2 Tr. Con. R. 5 Ired. 207.

489.

8 See 1 Hawk. c. 64, s. 26.

4 Ibid.

51 Hawk. c. 64, ss. 20, 21, 27; Milner v. Maclean, 2 C. & P. 17; Com. v. Shattuck, 4 Cush. 141; Com. v.

R. v. Smyth, 5 C. & P. 201; 1 M. & R. 155; Com. v. Shattuck, 4 Cush. 141; Com. v. Rees, 2 Brewst. 564; State v. Pollok, 4 Ired. 305.

State v. Pridgen, 8 Ired. 84.

to justify the officer in breaking the door, and entering either house or smoke-house.1

Entry by for

trick not

Peaceable

entry may

§ 1096. An entry by an open window, or by opening the door with a key, or by mere trick or artifice, such as by enticing the owner out, and then shutting the door upon him, or the like, without further violence,2 or if effected ble." by threats to destroy the owner's goods or cattle merely, and not by threats of personal violence,3 is not deemed a forcible entry. § 1097. A peaceable entry may be followed, as will be seen, by a forcible detainer. Thus where an intruder, having entered peaceably, said to the former possessor, "It will not be well for if you, you ever come upon the premises again by day or night," it was left to the detainer. jury whether this was a threat of personal violence, and so a forcible detainer within the statute: they having found it was, a conviction was held proper.5 And keeping forcibly a lessee out of possession to which he is entitled may be a forcible detainer." But a tenant entitled to possession may defend it by force adequate to the purpose.7

be fol

lowed by forcible

Forcible continuwrongful

ance by

§ 1098. Where a party having a right enters or makes claim, and the other party afterwards continues to hold possession by force, this is considered a forcible entry in the party so holding; because his estate is defeated by the entry or claim, and his continuance in possession is deemed a new entry.8

occupier is

forcible

entry.

§ 1099. Where the party entering has in fact no right of en

try, all persons in his company, as well those who do When not use violence as those who do, are equally guilty; there is but if he have a right of entry, then those only who entry,

1 Douglass v. State, 6 Yerg. 525. 2 Com. Dig. Forc. Ent. & D. 3; 1 Hawk. c. 64, s. 26.

31 Hawk. c. 64, s. 58; Burt v. State, 2 Tr. Con. R. 489.

4 Infra, §§ 1102, 1103.

5 People v. Rickert, 8 Cow. 226; People v. Godfrey, 1 Hall, 240; People v. Anthony, 4 Johns. 198.

6 Com. v. Wisner, 8 Phil. 612. 7 Com. v. McNeile, 8 Phil. 438; Com. v. Haxton, Lewis C. L. 282.

right of

8 1 Hawk. c. 64, ss. 22, 34; Co. Lit. 251; Burt v. State, 2 Tr. Con. R. 489. Supra, § 1087; infra, § 1101.

If, when the owner is out of his house, the defendant forcibly withhold him from returning to it, and in the mean time send persons to take possession of it peaceably, this is said to be a forcible entry. R. v. Smyth, 5 C. & P. 201.

33