[*]The number of ten makes a multitude: but what shall be so, lies in the discretion of the justices. Co. L. 257. a.

If a master enters with an unusual number of servants. Co. L. 257. b. {A forcible entry by one having right, is indictable; yet it will not sustain an action of trespass quare clausum fregit, for turning one out of possession, who has no right. Hyatt v. Wood, 4 Johns. Rep. 150.

A forcible entry and a forcible detainer, are distinct offences; and though both are charged in the indictment, the defendants may be acquitted of one and convicted of the other. So if one is defectively set out, and the other not, they may be convicted on that which is well. Commonwealth v. Rogers, 1 Serg. & Rawle, 124. {

(A 3.) What not.

But it shall not be a forcible entry, if (q) there be not an actual entry.(r) So, if he does not enter forcibly (s); as, if he opens the door with a key. 2 Rol. 2.(t)

Or enters by an open window. 2 Rol. 2.

Or, if the entry be without semblance or force; as, if a man comes in a peaceable manner, and entices the owner out of possession.

Though he afterwards opens the door, being only latched, and enters. H. P. C. 138.

Or, afterwards excludes the owner, by shutting the door, without other force.

Or, if he takes the owner, and imprisons him, and then sends his servant peaceably to make entry; this is false imprisonment, but not forcible entry.

Or if, after entry, he cuts corn, grass, &c.

Or, if the entry be forcible, but not with intent to do wrong there; as, if a man goes cross the land with force, or a great company, to church, or market. (u)

So, if a man enters an house, to apprehend a felon, &c.

Or, an officer with force enters to do execution.

Or, by warrant of law.

his own act; but his cattle being upon the ground do not preserve his possession, because they are not capable of being substituted as agents; and therefore their being upon the land continues no possession. 3 Bac. Abr. For. Ent. (B).

(q) 1. A man who breaks open the doors of his own dwelling-house, or of a castle, which is his own inheritance, but forcibly detained from him by one who claims the bare custody of it, cannot be guilty of a forcible entry, or detainer within these statutes. 3 Bac. Abr. For. Ent. (D). 1 Hawk. c. 64. s. 32.-2. So it is said that a man will not be within the statutes who forcibly enters into land in the possession of his own lessee at will; but a quære is subjoined. Hawk. Ibid.

(r) Where a man has been in possession of land for a great length of time by a defeasible title, and a claim is made by him who has a right of entry, the wrongful possessor, continuing his occupation, will be punishable for a forcible entry and detainer; because all his estate was defeated by the claim, and his continuance in possession afterwards amounts in the judgment of law to a new entry. 1 Hawk. P. C. c. 64. s. 22. 34. Crom. 69. Dalt. c. 77. Co. Litt. 256.

(s) Regularly, a forcible entry must be with a strong hand, with criminal weapons, or with menace of life or limb: it must be accompanied with some circumstances of actual violence or terror; and an entry which has no other force than such as is implied by law in every trespass, is not within the statutes. 3 Bac. Abr. For. Ent. (D). Dalt. 300. 1 Hawk.

c. 64. s. 25.

(1) Vide Noy. 136, 137. Bac. Abr. For. Ent. (B). 1 Hawk. c. 64, s. 26.

(u) 1. 1 Hawk. c. 64. s. 20, 21.-2. Without doing any act which expressly or impliedly amounts to a claim of the lands. Ibid.-3. Otherwise, if he make an actual claim with any circumstances of force or terror. Ibid.

(B) FORCEABLE DETAINER.

(B 1.) What shall be.

Forceable detainer is, when a man, who enters peaceably, afterwards [*]detains his possession by force; as, if he threatens a corporal damage to him who attempts to enter. H. P. C. 139. { Vide Commonwealth v. Rogers, 1 Serg. & Rawle, 124. }

If he repels him with violence.

Or continues the door shut, when the justices demand entrance. H. P. C. 139.

If he brings more arms than his family usually has. H. P. C. 139.
Or more persons than his usual family. H. 139.

Or the justices find unusual arms or company there.

If he lodges arms or men at a neighbouring place. H. P. C. 139.

If at the end of his term, he keeps drums, guns, halberts, to oppose the entry of the lessor; though no one attempts an entry. R. 2 Cro. 199. So it shall be a forcible detainer, if a lessee at will detains with force, after the will is determined. Vide Cromp. 70. b.

Or a mortgagor, after the mortgage is forfeited. Vide Dalt. c. 126. Or a feoffee of a disseisor, after entry or claim by the disseisee. Vide Cromp. 69. b.

So, if a lessee, with force, resists a distress for rent. Vide Cromp. 69. b. 70.

Or, forestalls, or rescues the distress. Vide Cromp. 69. b.

(B 2.) What not.

But it is not a forcible detainer (x), if a lessee at will, after the determination of the will, denies possession to the lessor, when he demands it. Cromp. 70. b.

Vide

Or shuts the door against the lessor when he would enter. Vide Cromp. 70. b.

So it is not a forcible detainer, if he keeps out a commoner, by force, upon his own land. Cro. Car. 486.

So, by the st. 8 H. 6. 9., any in possession three years, by himself, or any under whom he claims, may detain with force.

And by the st. 31 Eliz. 11., no restitution shall be given on an indictment of forcible entry, or detainer, where the party hath been three years in quiet possession before the indictment found, and his estate not determined.

But if A. was in quiet possession three years, and then disseised by force, and restored; he cannot afterwards detain with force within three years after his restitution: for his possession was interrupted. R. Dy. 141,

142.

(C) REMEDY, BY ACTION.

An action lies upon st. 15 R. 2. 2. against him who makes a forcible entry.

So, upon st. 8 H. 6. 9. against him who makes a forcible entry, or detainer.

Vide Pleader, (2 S 20.)

(x) For a man will not be guilty of the offence of forcible detainer, who merely refuses to go out of a house, and continues therein in despite of another. 1 Hawk. c. 64. s. 30.

[*](D) REMEDY, BY JUSTICES OF PEACE.

(D 1.) Upon view.

So, by the st. 15 R. 2. 2. a justice of peace may go to the place, &c. and if he find any hold forcibly, shall commit, &c. till, convict by record of the justice, they make fine and ransom. { Vide Shotwell's Case, 10 Johns. Rep. 304. }

And therefore, any justice of the peace, upon view of the force, may make. a record of it, and commit the offender. Vide Dalt. c. 44.

And this without a writ directed to him to execute the statutes.
And, upon any information, without a complaint of the party.

So every justice may take the sheriff, and posse comitatus, to restrain the force. Vide Dalt. c. 44.

He may break open a house to remove the force. Vide Dalt. c. 44.

The record made by a justice upon view, shall be a conviction, and is not traversable. Vide 8 Co. 121. Dalt. c. 44. Vide Mather v. Hood, 8 Johns. Rep. 36. 2d. edit.

And ought to be certified to B. R. or the next assizes, or quarter-sessions. Vide Dalt. c. 44.

And the party convicted shall be there fined. Vide Dalt. c. 44.

But the justice himself cannot fine. Dub. Dalt, c. 44. Vide Sal. 353. (y)

And if a defect appears, in the conviction, to B. R., it shall be quashed. 1 Sid. 156,

(D 2.) By inquisition.

So, by the st. 8 H. 6. 9., a justice of peace, whether the persons be present or gone, shall inquire of such forcible entry, or detainer: and on such inquiry shall direct warrants to the sheriff, to summon indifferent persons, near the lands, having 40s. per ann. to inquire, &c.

And shall return 20s. the first day on each summoned, 40s. the next day, and 57. the next, and so double; on pain of 201.

And therefore, every justice of peace may make inquisition upon a forcible entry, or detainer.

(D 3.) By indictment.

So an indictment may be for a (z) forcible entry, or detainer, before justices of peace of the county where the land lies, at the quarter-sessions.

But an indictment for a forcible detainer, ought to shew, that the entry was peaceable. R. 2 Cro. 151. Vide post, (D 4.) Cont.

An indictment will lie upon a forcible detainer, against a third person, or one who enters upon land after judgment against a former intruder. State 7. Gilbert, 2 Bay. 355. }

(y) The justices of peace must set the fine, and they must do it before they commit the offender, though they may take a reasonable time to consider of it. If no fine is set by the justices, and the offender is committed, B. R. cannot set the fine, but will quash the conviction. Str. 794. Ld. Raym. 1514.

(2) If a forcible entry or detainer be made by three persons or more, it is also a riot, and may be proceeded against as such, if no inquiry has before been made of the force. 2 Burn. Just. For. Ent. and Det. vii.

[*](D 4.) What shall be a good one.

The indictment ought to be certain: and therefore, it ought to shew the certainty of the house or land where the entry was (a): for, if it says, in Vide The People v. unum tenementum, it shall be quashed. 2 Rol. 46. Runkel, 9 Johns. Rep. 147. Dean v. The Commonwealth, 3 Serg. & Rawle, 418. } Vide Indictment, (G 1., &c.)

So it ought to show, what estate he had in the land where the entry was made (b): as, before the st. 21 Jac. it ought to shew that he had a free

hold. (c)

And since, it ought to say, what estate he has: for perhaps he is only tenant at will. (d) Semb. 1 Sal. 260. R. 1 Sid. 102. (e)

{So it must state a seisin of the prosecutor at the time of the entry, and also shew an entry by the defendant. The People v. Shaw, 1 Caines' Rep. 125. The People v. King, 2 Caines' Rep. 98. The People v. Nelson, 13 Johns. Rep. 340. Vide The Commonwealth v. Fitch, 4 Dall. 212. Respublica v. Shryber, 1 Dall. 68. Respublica v. Campbell, 1 Dall. 354. State v. Butler, 1 Tayl. 262. }

And though it afterwards says, quod disseisivit, it is not sufficient: for that is only an implication of a freehold. (f) R. 1 Vent, 306. (g)

So, possessionatus pro termino, is not sufficient, without saying, for life, or for years. 1 Vent. 306. (h)

(a) 1. The tenement in which the entry was committed must be described with convenient certainty; for otherwise the defendant will not know the particular charge to which he is to make his defence, nor will the justices or sheriff know how to restore the injured party to his possession. Russell, 419.-2. Thus an indictment of forcible entry into a lenement, which may signify any thing whatsoever wherein a man may have an estate of freehold, is not good. Dalt. 15. 2 Rol. Abr. 46. 2 Rol. Abr. 80. pl. 8. 3 Leon. 102. 3. So into a house or tenement. 2 Rol. Abr. 80. pl. 4, 5. Rol. Rep. 334. Cro. Jac. 633. Palm. 277.-4. Or into two closes of meadow or pasture. 2 Rol. Abr. 81. pl. 4.-5. Or Bulst. 201.-6. Or into certain lands belonging to such into a rood, or half a rood of land. Bro. tit. For. Ent. 23.-7. Or into such a house, a house. 2 Leon. 186, 3 Leon. 101. 2 Leon. 186,--8. Or into a tenement, with the apwithout shewing in what town it lies. 2 Rol. Abr. 80. pl. 7.-9. But an indictment for a purtenances, called Truepenny in D. forcible entry in domum mausionalem sive messuagium, &c. is good, for these are words equivalent, Cro. Jac. 633. Palm. 277.-10. An indictment for an entry into a close called Serjeant Herne's close, without adding the number of acres, is good; for here is as much certainty as is required in ejectment.-Bac. Abr. For. Ent. (E) 1 Hawk. c. 64. s. 31.— 11. And an indictment may be void as to such part of it only as is uncertain, and good for so much as is certain; thus an indictment for a forcible entry into a house and certain acres Bac. Abr. For. of land, may be quashed as to the land, and stand good as to the house. Ent. (E) 1 Hawk. c. 64. s. 31.

(b) Otherwise it would be uncertain whether any one of the statutes relative to forcible entries extended to the estate from which the expulsion was; the 5 R. 2. c. 7., the 15 R., 2. c. 2., and the 8 H. 6. c. 9., extending only to freehold estates; and the 21 Jac. 1. c. 15., extending only to estates holden by tenants for years, tenants by copy of court roll, and tenants by elegit, statute merchant, and statute staple. Say. 142.

(c) Ld. Raym. 210.

(d) 3 Salk. 169.

Salk. 260. 1 Vent. 89. 2 Keb. 495. Hetl. 73. Latch. 109.

(e) But in an indictment at common law, where the breach of the public peace is the gist of the offence, and the prosecutor is not entitled to restitution and damages, it appears to be sufficient to state only that the prosecutor was in possession of the premises. 8T. R. 357.

(f) 3 Salk. 170.

(g) To allege that the party was possessed of a term of years, or of a copyhold estate, and that the defendants disseised him; or that the defendants disseised J. S. of land then and yet being his freehold, is bad, for it implies that he always continued in possession ; and if so, it is impossible that he could be disseised at all. 1 Hawk. c. 64. s. 39. Bac. Abr. For. Ent. (E).

(h) So seised and possessed. 3 Salk. 170.

[*345]

So it ought to say, adtunc existen' his estate: for, at the time of the indictment, is not sufficient. R. 2 Cro. 214. 639. (i)

[*]And, adtunc et adhuc existen', &c. will be repugnant. Sho. 272.

So it ought to allege an express expulsion (k): for it is not sufficient to say, quod intravit, et eum disseisitum et expulsum extratenuit; but it ought positively to say, quod fuit disseisitus. R. 1 Sal. 260. (1)

An indictment for a forcible entry may be quashed upon motion, before a fine is set; not afterwards, without a writ of error. Sal. 450.

But an indictment for a forcible detainer, shall be good, though it does not shew, whether the entry was by force, or peaceably (m): for certainty is only necessary in the point charged; and if it is not said, by force, it shall not be intended. Dub. 2 Cro. 20. Vide ante, (D 3.) Cont. (n)

So an indict ment for a forcible entry is good, though it says, adhuc detinet, without shewing, that it was contra pacem: for perhaps the detainer was without force. R. 2 Cro. 32.

So it is sufficient to say, disseisivit, without adding, et expulit. (9) R. 2 Cro. 32. (p)

Quod fuit possessionatus pro termino annorum, without saying, how many years. 1 Vent. 306. (q)

(D 5.) When restitution shall be made.

By the st. & H. 6. 9., a justice of peace, if on inquiry, &c. a forcible entry or detainer is found, shall put the party in possession of the lands so entered or holden.

And the justice shall make restitution, after inquisition found, to the party ousted, by himself, or by his precept to the sheriff. Per 2 J. Ray. 85. Carth. 496.

(i) An indictment cannot warrant a restitution, unless it find that the party was seised at the time. Bac. Abr. For. Ent. (E). 1 Hawk. c. 64. s. 3. 41. 3 Salk. 169. (k) For it is a repugnancy to award restitution of possession to to have lost it. 1 Hawk. c. 64. s. 41. (1) Lord Raym. 610.

one who does not appear

(m) But it must set forth an entry, for otherwise it does not appear but that the party has been always in possession; in which case, he may lawfully detain it by force. 1 Hawk. c. 64. s. 40. Bac. Abr. For. Ent. (E).

(n) 1. The statutes seem to require that the entry should be laid in the indictment manu forli, or cum multitudine gentium; but some have holden, that equivalent words will be sufficient, especially if the indictment concludes contra formam stalulı; but it is not sufficient to say only that the party entered vi et armis; since that is the common allegation in every trespass. Cro. Jac. 41. Rast. Ent. 354. Bac. Abr. For. Ent. (E). Russell, 419.-2. No particular technical words are requisite in an indictment at common law; all that is required is, that it should appear by the indictment that such force and violence have been used as constitute a public breach of the peace. 8 T. R. 362. (0) Or expulit without dissersivit. Comb. 70.

(P) 1. The time and place of the disseisin must be sufficiently set forth in the indictment; but it appears to be sufficient to state, that the defendant on such a day entered, &c. and disseised, &c. without adding the words then and there; for it is the natural intendment that the entry and disseisin both happened together. Cro. Jac. 41. 1 Hawk. c. 64. 5. 42.-2. A disseisin is sufficiently set forth by alleging that the defendant entered, &c. into such a tencment, and disseised the party, without using the words ' unlawfully' or' expelled,' for they are implied. Bac. Abr. For. Ent. (E).

(q) 1. If a bill, both for a forcible entry and forcible detainer, be preferred to a grand jury, and found not a true bill as to the entry with force, and a true bill as to the detainer, it will not warrant an award of restitution; but it is void, because the grand jury cannot find a bill true for part and false for a part, as a petty jury may. 1 Hawk. c. 64. s. 40.— 2. This, however, does not seem to apply to the case of different counts in the same indictment, but only where the grand jury find a true bill,' and not a true bill,' upon different parts of one and the same charge. Cowp. 323. Russell, 422.