only need ficient to support the allegation in the indictment that session the complainant was possessed in fee simple.1 At com- be averred. mon law, as we have also noticed, mere possession is all that need be laid. But as is elsewhere seen, an indictment stating a naked possession merely in the prosecutor, without laying any estate or interest in him, is not sufficient to authorize an award of restitution. Such an allegation, however, will be sufficient to support an indictment for the forcible entry at common law as a breach of the peace; though it has been said that as a forcible detainer is not an offence at common law, an indictment for that offence should always aver the prosecutor's estate in the premises.5 An allegation in the indictment that the prosecutor was disseised, necessarily implies a previous seisin.6 Premises § 1109. The indictment must describe the premises entered with the same particularity as in ejectment. Thus, an indictment of forcible entry into a messuage, tenement, and tract of land, without mentioning the number of acres, was held bad after conviction." Hampshire. State v. Pearson, 2 N. The proof as to the application of force must correspond with the indictment. Thus where an indictment laid the force against the seisin of A., it was ruled that evidence was not admissible of an entry on land leased by A. and B. to C., and of force against C. Resp. v. Sloane, 2 Yeates, 229; Penn. v. Grier, 1 Smith's Laws, 3. And as to other cases of variance see infra, § 1009. 1 4 Bl. Com. 148; 1 Hawk. 274; People v. Van Nostrand, 9 Wend. 50. 2 Supra, § 1104. 3 Infra, § 1111. Com. v. Taylor, 5 Binn. 277; Com. v. Kensey, 5 Penn. L. J. 119; 2 Pars. 114. 5 Com. v. Toram, 6 Penn. L. J. 296; 2 Pars. 411. must be de scribed as n eject ment. An indictment charging that A. was 'peaceably possessed in his demesne, as of fee," of certain lands," and continued so seised and possessed" until B. "thereof disseised" him, and "him so disseised and expelled," did keep out, &c., was held good on error; Fitch v. Remp. 3 Yeates, 49; 4 Dall. 212; and so where the indictment stated that the prosecutor was seised in his demesne as of fee, and that his "peaceable possession thereof, as aforesaid, continued until," &c., the latter words being rejected as surplusage. Resp. v. Schryber, 1 Dall. [BOOK II. Certainty to a reasonable intent is all that is required in the description.1 detainer are divisible. § 1110. Although a forcible entry and forcible detainer are Entry and charged in the same indictment, they are nevertheless distinct offences, and the defendant may be acquitted of one and convicted of the other. If one is defectively set out, he may be convicted of that which is well set out.2 § 1111. To enable the court to award restitution on a conviction for forcible detainer, it is necessary that there should be an estate, either freehold or leasehold, averred in the prosecutor. Thus where an indictment stated that A. "was lawfully and peaceably seised" of the premises, Title is necessary to restitution. 1 Torrence v. Com. 9 Barr, 184. Where the indictment was for forcible entry and detainer of a messuage in possession of A. for a term of years, and the evidence was of forcibly entry into a field, and no lease was produced, it was held that the indictment could not be supported. Penn. v. Elder, 1 Smith's Laws, 3. And so where the indictment averred forcible entry on a field, and it was proved that the attack was on a house. State v. Smith, 2 Ired. 127; and see Resp. v. Sloane, 2 Yeates, 229. Where the words were, "a certain messuage with the appurtenances, for a term of years, in the district of Spartanburg," it was adjudged that the place where was not described with sufficient legal certainty. State v. Walker, Brev. MS. It is sufficient to describe the premises as a certain close of two acres of arable land, situate in S. township, in the county of H., being a part of a larger tract of land adjoining lands of A. and B." Dean v. Com. 3 S. & R. 418. "A certain tavern stand, with the appurtenances, including about five acres of land adjacent thereto, at the M. and U. cross-roads in E. township in A. county," is, it seems, a sufficient description of the premises to support an award of restitution in forcible entry and detainer. Torrence v. Com. 9 Barr, 184. And so as to "all that piece of land containing seventy-six acres and one hundred and fifty perches, and the allowance of six per cent., it being part of a large tract known as the Peter Jackson improvement, adjoining lands of David Henderson on the east." Van Pool v. Com. 13 Penn. St. 391. See R. v. Studd, 14 W. R. 806; Atwood v. Joliffe, 3 New Sess. Cas. Q. B. 116. When restitution is not claimed, it is enough to aver possession alone. That such is the case has been already stated, as here the defendant proceeds merely for the offence at common law. Supra, § 1108. 2 People v. Rickert, 8 Cow. 226; People v. Godfrey, 1 Hall, 240; People v. Anthony, 4 Johns. 198; Com. v. Rogers, 1 S. & R. 124; Burd v. Com. 6 S. & R. 252; State v. Ward, 1 Jones (N. C.), 290. See Whart. Plead. & Prac. §§ 736 et seq.; Whart. Crim. Ev. § 129. 8 R. v. Bowser, 8 D. P. C. 128; 1 Wil., W. & H. 345; R. v. Taylor, 7 Mod. 123; Resp. v. Campbell, 1 Dall. 354; State v. Speirin, 1 Brev. 119. and that B., son of A., " was lawfully in possession of the same,' and that "the defendant entered and expelled the said B. from possession of the premises, and forcibly disseised the said A. of the same, and the said B. so expelled and held out," &c., it was held that it was error to award restitution to A.1 Yet it has in England been held sufficient for the purposes of restitution to aver that the estate was "in the possession of W. P., he, W. P., then and there being also seised thereof." 2 for forcible trespass on personalty violence. must aver § 1112. Indictments for forcible trespass on personalty are rare at common law, since it is much simpler to indict Indictment for an assault, which, as has been seen, is a usual ingredient in a forcible trespass. If, however, an indictment of this kind should be framed, it is necessary to aver actual possession in the prosecutor, and violence offered to him, or violent wresting of the chattel from him, so as to constitute a breach of the peace. Yet it is enough to say that the defendant, "with strong hand," and against his will, took, &c., the chattel from the possession of the prosecutor, in whose possession it then and there was.5 If sufficient violence to constitute a robbery is alleged, then the prosecution must try, not for forcible trespass, but for robbery. Under these circumstances, common law indictments for a forcible trespass have been rarely attempted. It must be kept in mind, in considering this question, that a party has at common law the right to rescue even by force (if such force be not excessive) his property from the hands of another. If, however, in doing this, he uses unnecessary force, or stimulates a riotous demonstration, he is indictable.8 1 Burd v. Com. 6 S. & R. 252. See R. v. Depuke, 11 Mod. 273; Com. v. Toram, 5 Penn. Law Journ. 297; 2 Pars. 411; Torrence v. Com. 9 Barr. 184; Van Pool v. Com. 13 Penn. St. 391; State v. Bennett, 4 Dev. & Bat. 43; State v. Anders, 8 Ired. 15; but see R. v. Dillon, 2 Chit. 314, where it was held that "seised" was enough. 2 R. v. Hoare, 6 M. & S. 266; R. v. Dillon, 2 Chit. 314. See supra, § 1092. 4 State v. Mills, 2 Dev. 420; State v. Watkins, 4 Humph. 256. 5 State v. Mills, ut supra. For a recent instance, where a prosecution of this class was sustained, see State v. Mc Adden, 71 N. C. 207. 7 Supra, § 100. See State v. Covington, 70 N. C. 71. › State v. Armfield, 5 Ired. 207; State v. McCanless, 9 Ired. 375; State v. Simpson, 1 Dev. 504. Supra, § 1100. Practice to sustain summary convictions. § 1113. Of summary convictions by justices under 15 Rich. 2, c. 2; and 8 Hen. 6, c. 9, there are no reported American cases. In England it is held that to sustain the procedure there must be alleged and proved an unlawful entry as well as a forcible detainer.1 Where a conviction stated that justices had convicted A. of forcible detainer upon their own view, and that afterwards a complaint was made to the justices that A. forcibly entered the premises, and that notice of such complaint was given to A., who received it, but said nothing, and then went on to allege that the justices received evidence on oath of the unlawful entry; it was held that the conviction was bad, for not showing that A. had been summoned to answer the charge of the unlawful entry, or that he had had an opportunity afforded him of defending himself against such charge.2 1 Atwood v. Joliffe, 3 New Sess. Cas. Q. B. 116; R. v. Oakley, 4 B. & Ad. 307; 1 N. & M. 58; R. v. Wilson, 5 N. & M. 164; 3 Ad. & El. 817. As 42 to procedure see R. v. Wilson, 3 N. & M. 753; 1 Ad. & El. 627. 2 Atwood v. Joliffe, ut supra. R. v. Studd, 14 W. R. 806. See CHAPTER XVIII. CHEATS. I. CHEATS AT COMMON LAW. Cheats affecting public justice are indictable, § 1117. And so of cheats by false tokens and devices calculated to affect public, § 1118. But not by short weight without false token, § 1119. Adulterations must be latent, directed to public in general, § 1120. Cheats by public false news may be indictable, § 1121. And so of false dice, § 1122. And so of false notes calculated to Nature of distinction between public offence may be larceny, § 1127 a. Indictment for public cheat need not name party cheated, § 1128. Mode of cheating should be specified, § 1129. II. STATUTORY CHEATS BY FALSE PRE TENCES. 1. General Rules of Construction. Statutes are to be construed in accordance with object, § 1130. 2. Character of the Pretences. Pretence that defendant was a person of wealth and credit is within statute, § 1135. And so that defendant possessed certain specified assets, § 1136. So when negotiable paper is obtained, § 1137. And so when indorsement is obtained, § 1138. So generally as to defendant's status, § 1139. So as to pretension to supernatural power, § 1140. So as to pretence that defendant had delivered certain goods, or paid certain money, § 1141. That defendant was sent for certain goods, § 1142. Of being a certain physician, § 1143. That defendant represented a principal of means, § 1144. That defendant was an auctioneer in search of a clerk, § 1145. That defendant was a certain attorney, § 1146. That defendant was a certain payee, § 1147. That defendant was unmarried, § 1148. That defendant had certain legal rights, § 1149. That the defendant had claims against prosecutor, § 1150. That defendant could settle a prosecution against prosecutor, § 1151. That defendant was an "Oxford student," or "clergyman," or "officer," § 1152. False begging letters may be within statute, § 1153. A false pretence is to be distinguished from a puff, § 1154. Mere exaggerated praise is not a false pretence, § 1155. But otherwise as to false sample, § 1156. Opinions as to quality are not always pretences, § 1157. But use of false brand is within statute, § 1158. |