Third

count.

other offensive weapons, with force and arms, unlawfully did come into the chase of N. in a certain part thereof, called the ward of B. alias B. ward, and the said ward last mentioned, then and there being an extra-parochial place within the said chase, and the said chase then and there being the chase of our said lord the king, and a place wherein deer were usually kept, with an intent then and there unlawfully to kill and take away one fallow deer, then and there being in the said last mentioned ward, and being also then and there so armed as aforesaid, did then and there with force and arms, unlawfully make an assault and affray upon the said E. P. then and there being one of the assistants of the said lord V. then and there being the keeper of the said last mentioned ward, where deer then were usually kept, then and there being in ths said. last mentioned ward in the due execution of his the said E. P.s office, and in the peace of God and our said lord the king, and the said T. W. being also then and there so armed as aforesaid, did then and there unlawfully beat and wound the said E. P. in the due execution of his said office, and then and there did other injuries to the said E. P. to the great damage of the said E. P in contempt, &c. to the evil example, &c. and against the form of the statute, &c. and against the peace, &c. And the jurors, &c. do further present, that the said T. W. on, &c. aforesaid, at, &c. aforesaid, being then and there armed with fire-arms, unlawfully did come into a certain other ward of our said lord the king, lying within and part of the said forest of our said lord the king, called the forest, in which said last mentioned ward and forest deer were then usually kept, with an intent then and there unlawfully to kill and take away one fallow deer, then and there being in the said last mentioned ward and forest, and did then and there unlawfully beat and wound the said E. P. then and there being one of the assistants of the said lord V. he the said lord V. then and there being the keeper of [*1120] the said last mentioned ward where deer were usually* kept, and then and there being in the last mentioned ward, in the due execution of his the said E. P.'s office, to the great damage, &c. and against the peace, &c. And the jurors, &c. that the said T. W. on, &c. aforesaid, at, &c. aforesaid, with force and arms, and armed with fire-arms and other offensive weapons, unlawfully did come into the said forest of our said lord the king, called the forest of N. in the said county of S. the same then and there being an extra-parochial place where deer where then and there usually kept, with an intent then and there unlawfully to kill and take away one fallow deer, then and there being in the said forest, and did then and there unlawfully beat and wound the said E. P. then and there be

Fourth count.

ing one of the assistants of the said lord V. he the said lord V. then and there being one of the keepers of the said forest, where deer then and there were usually kept, and then and there being in the said forest, in the due execution of his the said E. P's office, to the great damage, &c. and against the peace, &c.

INDICTMENTS FOR FORCIBLE ENTRIES AND

DETAINERS. (z)

PRELIMINARY NOTES.

Offence. These offences consist in the violently taking or The of keeping possession of houses, buildings, or lands, with me- fence. naces, force and arms, without the authority of law. 4 Bla. Com. 148. A forcible entry is when a person enters into lands or tenements, manu forti; as if he brings unusual weapons or threatens violence-breaks open the door-or violently ejects the possessor, Co. Lit. 257. Com. Dig. Forcible entry, A 2. 8. T. R. 357. It is no excuse that he enters to make a distress, or to enforce a lawful claim. Com. Dig. Forcible entry. A. 2. 8 T. R. 361. Nor does it alter the case, that no one is within the house, or that possession was ultimately obtained by entreaty, id. ibid. If one person of the company uses violence, all are alike guilty, Co. Lit. 2576. A forcible detainer is when a man who has entered peaceably, maintains his possession by force; as if he threatens to do bodily harm to any one who shall attempt to enter, uses a larger [*1121] quantity of arms that is usual for protection, or assembles a crowd of people to repel the approach of others. Com. Dig. Justices, B. 1. It may be committed by a lessee forcibly maintaining possession when his term is expired, a mortgagor after forfeiture of the mortgage, the feofee of a disseisor after entry or claim of the party disseised, and a tenant when he forcibly resists a distress for rent in arrear. Id. ibid. It is punished rather as a breach of the peace than an offence against the property of an individual. At all events, it is evident from the modern cases, that an actual breach of the peace and a violence must be charged in the indictment, or the court will quash it upon motion, or the defendant may demur. 3 Burr. 1701. 1706. 1731. 8 T. R. 360. For no indictment will lie for a mere civil injury, however obnoxious the

(z) See in general, Hawk. b. 1. Burn's Justice, Forcible Entry. c. 64. Com. Dig. Forcible Entry.

32

trespass. Id. ibid. It is clear however that an indictment may be supported at common law for a forcible entry, 8 T. R. 360. The 5 Rich. 2. c. 7. enacts "that none from henceforth make lands and tenements but in case where any entry into any 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 convict, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will." This act, however, gave no new or speedy remedy. And, therefore, the 15 Rich. II. c. 2. empowers any justice of the peace, on complaint made to him, to take sufficient power of the county and go to the place where the force is made, and if he there find a party holding forcible possession, he may send him to the next gaol there to abide convict by the record of the justice till he makes fine and ransom to the king. This act being found defective, the 8 Hen. VI. c. 9. extends it to a forcible detainer; gives justices power to enquire of a forcible entry though the violence is over before they arrive; to re-seize the lands and tenements, and restore possession of them to the party ejected. It is, however, provided that those who keep with force premises of which they or their ancestors have continued in possession for three years or upwards are not within the statute. And further to enforce this proviso, the 31 Eliz. c. 11. declares and enacts, "that no restitution upon any indictment of forcible entry or holding with force be made to any person if the person so indicted hath had the occupation or been in quiet possession for the space of three whole years together next before the day of such indictment so found, and his estate therein not ended; which the party indicted may allege for stay of restitution, and restitu[*1122] tion to stay till that be tried* if the other will deny or traverse the same." And by the 21 Jac. 1. c. 25. it is provided "that such judges, justices or justice of the peace as by reason of act or acts of parliament then in force were authorised and enabled upon enquiry to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon by force, or from them withholden by force, shall by reason of that act have the like and the same authority and ability from thenceforth (upon indictment of such forcible entries or forcibly withholding before them duly found) to give like restitution of possession unto tenants for term of years, tenants by copy of courtroll, guardians by knight's service, 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." The restitution of the land, is, therefore, the principal reason for indicting.

ment.

Indictment. In an indictment for a forcible entry the place Indictmust be described in terms sufficiently certain. And, therefore, if it merely charges 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 Sess. Cas. 357. 1 East, 441. 2 Stra. 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. Hawk. b. 1. c. 64. s. 37. The indictment must also shew what party had the possession of the premises. 1 Sess. Cas. 359. and on the 8 Hen. VI. must state that the place was the freehold of the party grieved; but it seems to be sufficient on the statutes of Richard the Second to shew who had the possession. Hawk. b. 1. c. 64. s. 38. On the 8 Hen. VI. the allegation must be express, that the place was the freehold of the party grieved, at the time the injury arose. id. ibid. And as under this act it must be shewn that the party aggrieved was seised of a freehold, in order to bring the case within it, so under 21 Jac. 1. c. 15. the indictment must allege such an estate in him as that statute requires; and, therefore, to set forth, in general, that he was possessed, or possessed, for a certain term, without adding that it was for years, is not good, for, in the first case, it may be supposed that he is merely a tenant at will, and, in the second, that he is possessed of a term for life, in neither of which cases will the statute of James apply. Hawk. b. 1. c. 64. s. 38. But an indictment at common law, stating that the prosecutor was possessed will suffice. 8 T. R. 360. The indictment need not state the offence to have been committed both manu forti and* vi et armis, but the former will suffice, as it includes [*1123] the latter. Cro. Eliz. 461. It is the words " with a strong hand" that distinguish the indictable offence from the civil trespass. At least a public breach of the peace must apappear. 8 T. R. 361, 2. 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," 8 T. R. 357. Cro. Jac. 32. 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, Cro. Jac. 41, 151. An indictment for a forcible detainer is good without shewing that the defendant's original entry was peaceful, Cro. Jac. 19. But it seems clear that an entry must be shewn as the act would not apply if the party had been always in possession. Hawk. b. 1. c. 64. s. 40. It seems to have been left doubtful whether an

Plea.

Award of Restitution.

indictment, stating that the defendant entered and disseised, without saying whether the entry was peaceable or violent, is good, Cro. Eliz. 915. though, on principle, it appears to be defective as charging no specific offence. And it is clear that repugnancy in stating the charge will vitiate; as if, in an indictment on 8 Hen. VI. setting forth that the defendants peaceably entered and then and there with force and arms disseised the prosecutor; or if it set forth a disseisin of land then and still being the freehold of the party grieved; for it appears that he always remained in possession, in which case there can have been no disseisin, Alleyn. 50. 2 Rol. Rep. 311. It is said that forcible detainer need not be laid as against the peace; but it is not usual to omit this allegation. Cro. Jac. 32, 151.

Plea.-A person indicted of a forcible entry may delay the award of execution by traversing the force, or by plea of three years' possession. 1 Ld. Raym. 440. When the proceedings are removed into the king's bench by certiorari, the defendant must plead instanter.

Award of restitution.-As to award of restitution, see Hawk. b. 1. c. 64. s. 45 to 66. If the defendant be unjustly put out of possession, the court of king's bench will make re-restitution of the lands, Cro. Jac. 151. Alleyn 50.

[*1124] For a for

cible entry and detainer

at com

mon law, (a)

That A. B. late of, &c. and C. D. late of, &c. together with divers other evil disposed persons, and disturbers of the peace of our said lord the king, to the number of six and more, whose names to the jurors aforesaid are as yet unknown, on, &c. with force and arms, and with a strong hand, (b) unlawfully, violently, forcibly, and injuriously did enter into, &c. [state the premises according to the fact,] (c) then and there being in the peaceable possession of one E. F. (d) and situate and being in the parish aforesaid, in the county aforesaid; and that the said A. B. and C. D. together with the said other evil disposed persons, then and there with force and arms, and with a strong hand, unlawfully, violently, forcibly and injuriously did expel, amove, and put out the said E. F. from the possession of the said premises with the appurtenances, and the said E. F. so as aforesaid expelled, amoved, and put out from the possession of the same with force and arms, and with a strong hand, unlawfully, violent

(a) See similar precedents Starkie 422. Cro. C. C. 199. 8 T. R. 357. (b) This allegation or some words equivalent to it, are essential 8 T. R. 357.

(c) The same certainty of description is requisite as in a declaration in ejectment.

(d) It must be shown who was actually in possession .1 Sess. Cas. 359.