and was repaid by lady Ilchester. On it being objected that at the time. of payment, this was not her money, Lord Ellenborough said, that her subsequent allowance did not make the money paid to the defendant her money at the time. She was not chargeable for more than was actually due for the carriage, and it depended upon her whether she should pay the overplus. The servant, however, afterwards swore that at the time of this transaction, he had in his hands upwards of 9s. 10d., (the whole sum charged) the property of his mistress, which Lord Ellenborough considered sufficient to sustain the averment. Douglas' case, 1 Campb. 212.

The indictment must state that the money, &c. obtained, is the property of the person whom it was intended to defraud; since otherwise a conviction or acquittal on such indictment, could not be pleaded in bar to [*429] a subsequent indictment for larceny, in respect of *the same transaction. Norton's case, 8 C. and P. 197 (a). And this defect is not aided by verdict. Martin's case, Q. B., T. T. 1838. Archb. P. 279, 7th ed.

Proof of all being principals.] Where several persons were indicted for obtaining money under false pretences, it was objected, that although they were all present when the representation was made to the prosecutor, yet the words could not be spoken by all, and one of them could not be affected by words spoken by another; but that each was answerable for himself only, the pretence conveyed by words being like the crime of perjury, a separate act in the person using them; the Court of King's Bench, however, held, that as the defendants were all present, acting a different part in the same transaction, they were guilty of the imposition jointly. Young's case, 3 T. R. 98.

Defendant not to be acquitted where the offence appears to be a larceny. By the 7 & 8 Geo. 4, c. 29, s. 53, (vide ante, p. 417,) if it appears on the trial that the defendant obtained the property in question, in any such manner as to amount in law to larceny, he shall not be entitled to be acquitted by reason thereof. In all cases, therefore, where it is doubtful whether in point of law the offence is a larceny, or a misdemeanor, the safest course is to indict the party as for a misdemeanor, for should it appear upon an indictment for larceny, that the offence is, in fact, that of obtaining money, &c., under false pretences, the prisoner must be acquitted.

"Restitution of the property obtained.] The court had not the power, formerly, of ordering the restitution of property obtained by false pretences, the statute 21 Hen. 8, c. 11, extending only to stolen property. But now by the 7 & 8 Geo. 4, c. 29, s. 57, it is enacted, that in cases of misdemeanors the court has power to award the restitution of the property. See this section stated, post.

(a) Eng. Com. L. Rep. xxxiv. 350:

FISH;

TAKING OR DESTROYING FISH.

It will be seen (post, title, Larceny,) that larceny might be committed at common law of fish in a trunk or net, or as it seems in any inclosed place, where the owner might take them at his will. 2 East, P. C. 610. But it was no larceny to take fish in a river, or other great water, where they were at their natural liberty. Hawk. P. C. b. 1, c. 33, s. 39. Property of this kind was protected by various statutes, (4 & 5 [ *430 Win. 3, c. 23, s. 5. 22 & 23 Car. 2, c. 25, s. 7., 9 Geo. 1, c. 22. 5 Geo. 3, c. 14,) but those statutes are now repealed by the 7 & 8 Geo. 4, c. 27, and the substance of them is re-enacted in the 7 & 8 Geo. 4, c. 29. By s. 34, "if any person shall unlawfully and wilfully take or destroy any fish in any water which shall run through, or be in any land adjoining or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be punished accordingly; and if any person shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as aforesaid, but which shall be private property, or in which there shall be any private right of fishery, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the value of the fish taken or destroyed (if any,) such sum of money, not exceeding five pounds, as to the justice shall seem meet: provided always, that nothing herein-before contained shall extend to any person angling in the day-time; but if any person shall by angling in the day-time unlawfully and wilfully take or destroy, or attempt to take or destroy any fish in any such water as first mentioned, he shall, on conviction before a justice of the peace, forfeit and pay any such sum not exceeding five pounds; and if in any such water as last-mentioned, he shall, on the like conviction, forfeit and pay any sum not exceeding two pounds, as to the justice shall seem meet; and if the boundary of any parish, township or vill shall happen to be in or by the side of any such water as is herein-before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto."

On an indictment under the above section, the taking of the fish need not be such a taking as would be necessary to constitute larceny. See Glover's case, R. and R. 269 (a).

The words" adjoining" any dwelling-house, import actual contact, and, therefore, ground separated from a house by a narrow walk and paling, wall, or gate, is not within their meaning. Hodges' case, M. and M. 341 (b).

And by s. 35, "if any person shall at any time be found fishing, against the provisions of this act, it shall be lawful for the owner of the ground, water, or fishery where such offender shall be so found, his ser

(a) 1 Eng. C. C. 269. (b) Eng. Com. L. Rep. xxii. 330.

vants, or any person authorised by him, to demand from such offender any rods, lines, hooks, nets, or other implements for taking or destroying fish, which shall then be in his possession, and in case such offender shall not immediately deliver up the same, to seize and take the same from him for the use of such owner: provided always, that any person angling in the day-time, against the provisions of this act, from whom any implements used by anglers shall be taken, or by whom the same shall be delivered up as aforesaid, shall by the taking or delivering thereof be exempted from the payment of any damages or penalty for such angling."

*431] *And by s. 36, "if any person shall steal any oysters or oyster brood from any oyster bed, laying, or fishery, being the property of any other person, and sufficiently marked out or known as such, every such offender shall be deemed guilty of larceny, and, being convicted thereof, shall be punished accordingly; and if any person shall unlawfully and wilfully use any dredge, or any net, instrument, or engine whatsoever, within the limits of any such oyster fishery, for the purpose of taking oysters or oyster brood, although none shall be actually taken, or shall with any net, instrument, or engine, drag upon the ground or soil of any such fishery, every such person shall be guilty of a misdemeanor, &c., and it shall be sufficient in any indictment or information to describe either by name or otherwise, the bed, laying, or fishery, in which any of the said offences shall have been committed, without stating the same to be in any particular parish, township, or vill: provided always, that nothing therein contained, shall prevent any person from catching or fishing for any floating fish within the limits of any oyster fishery, with any net, instrument, or engine, adapted for taking floating fish only."

As to destroying the dams of fish ponds, &c., see title Malicious Injuries.

Offence at common law.] It seems that entering with such force and violence into lands or tenements, as to exceed a bare trespass, was an offence indictable at common law. Wilson's case, 8 T. R. 357; 1 Russell, 283. But against this offence provision has been made by various statutes (1).

(1) For American decisions upon this subject, see 1 Russell C. and M. 283, book 2, ch. 29, in notis.

Offence by statute.] The first enactment against forcible entries is that of 5 Rich. 2, c. 8, which merely forbids them.

*By the 15 Rich. 2, c. 2, it is accorded and assented, that the [ *432] ordinances and statutes, made and not repealed, of them that make entries with strong hand into lands and tenements, or other possessions whatsoever, and them hold with force, and also of those that make insurrections, or great ridings, riots, routs, or assemblies, in disturbance of the peace, or of the common law, or in affray of the people, shall be holden and kept, and fully executed, joined to the same that at all times that such forcible entry shall be made, and complaint thereof cometh to the justices of the peace, or to any of them, that the same justices or justice take sufficient power of the county, and go to the place where such force is made, and if they find any that hold such place forcibly after such entry made, they shall be taken and put in the next gaol, there to abide convict by the record of the same justices or justice, until they have made fine and ransom to the king.

This statute was followed by that of 8 Hen. 6, c. 9, which after reciting the 15 Rich. 2, c. 2, enacts, for that the said statute doth not extend to entries in tenements in peaceable manner, and after holden with force, nor if the persons which enter with force into lands and tenements be removed and voided before the coming of the said justices or justice, as before, nor any pain ordained, if the sheriff do not obey the commandments and precepts of the said justices, for to execute the said ordinances, many wrongful and forcible entries be daily made in lands and tenements, by such as have no right, and also divers gifts, feoffments, and discontinuances, sometimes made to lords, and other puissant persons, and extortioners, within the said counties where they be conversant, to have maintenance, and sometimes to such persons as be unknown to them so put out, to the intent to delay and defraud such rightful possessors of their right and recovery for ever, to the final disherison of divers of the king's faithful liege people, and likely daily to increase, if due remedy be not provided in this behalf; enacts, that from henceforth, where any doth make any forcible entry on lands and tenements, or other possessions, or them hold forcibly, after complaint thereof made within the same county, where such entry is made, to the justices of peace, or to one of them, by the party grieved, that the justices or justice so warned, within a convenient time, shall cause, or one of them shall cause, the said statutes duly to be executed, and that at the costs of the party so grieved. (See Wilson's case, post, p. 435.)

By section 10 of this statute, the justices are directed to re-seize the lands or tenements entered upon, and to put the party put out into full possession of the same. But it is provided, that they who keep their possession with force, in any lands and tenements whereof they or their ancestors, or they whose estate they have continued their possession in the same, for three years or more, be not endamaged by the statute. This proviso is enforced by the 31 Eliz. c. 11, s. 3, which declares, that no restitution shall be made, if the person indicted has had the occupation or been in quiet possession for the space of three whole years together, next *before the day of the indictment found, and his estate therein [ *433 ] not ended or determined.

In order to extend the remedy for forcible entries upon other estates than those of freehold, it was, by 21 Jac. 1, c. 15, enacted, "that such

judges, justices, or justices of the peace, as, by reason of any act or acts of parliament now in force are authorised 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 withholding 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 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."

Upon a prosecution under these statutes, the prosecutor must prove-1, the entry or detainer; 2, that it was forcible; 3, the possession upon which the entry was made; and 4, that it was made by the defendant.

Proof of the entry.] A forcible entry or detainer is committed by violently taking or keeping possession of lands or tenements, by menaces, force, and arms, and without the authority of law. 4 Bl. Com. 148. It must be accompanied with some circumstances of actual violence or terror, and therefore an entry, which has no other force than such as is implied by law in every trespass, is not within the statutes. Hawk. P. C. b. 1, c. 64, s. 25. The entry may be violent, not only in respect to violence actually done to the person of a man, as by beating him, if he refuse to relinquish possession, but also in respect to any other kind of violence in the entry, as by breaking open the doors of a house, whether any person be within or not, especially if it be a dwelling-house, and perhaps by acts of outrage after the entry, as by carrying away the party's goods. Ibid. s. 26. See 3 Burr. 1702. (n.)

But if a person, who pretends a title to lands, barely goes over thein, either with or without a great number of attendants, armed or unarmed, in his way to the church or market, or for such like purposes, without doing any act which expressly or impliedly amounts to a claim to such lands, this is not an entry within the meaning of the statutes. Hawk. P. C. b. 1, c. 64, s. 20. Drawing a latch and entering a house is said not to be a forcible entry, according to the better opinion. Id. s. 26; Bac. Ab. Forcible Entry, (B.) 1 Russell, 288.

Proof of the force and violence.] Where the party, either by his behavior or speech, at the time of his entry, gives those who are in possession just cause to fear that he will do them some bodily hurt, if they [*434] do not give way to him, his entry is esteemed forcible, *whether he cause the terror by carrying with him such an unusual number of servants, 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 which plainly imply a purpose of using force against those who make resistance. Hawk. P. C. b. 1, c. 64, s. 27. But it seems that no entry is to be judged forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any similar damage, which is not personal. Id. s. 28; sed vide ante, p. 433.

It is not necessary that there should be any one assaulted to constitute a forcible entry; for, if persons take or keep possession of either house or