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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.

FORCIBLE ENTRY AND DETAINER.

Offence at common law
Offence by statute
Proof of the entry
Proof of the force and violence
Proof that the detainer was forcible

431 Proof of the possession upon which the - 431 entry was inade

435 533 Proof that the offence was committed by 433 the defendant

436 434 Award of restitution

436

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 declareş, 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 then 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 siaple, of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force."

Upon a prosccution under these statutes, the prosecutor must prove), 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 detairer is committed by violently taking or keeping possession of lands or tenéments, by menaces, force, and arms, and without the authority of law. 4 Bl. Com. 148. It must be accompanied with some circumsiances 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 réfuse 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. Sce 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 attendauts, 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 lạnds, 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 bė. havior 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

land, with such numbers of persons and show of force as are calculated to deter the rightful owner from sending them away, and resuming his own possession, that is sufficient in point of law to constitute a forcible entry, or a forcible detainer. Per Abbott, C. J., Milner v. Maclean, 2 C. and P. 18 (a). An indictment for a forcible entry cannot be supported by evidence of a mere trespass, but there must be proof of such force, or at least such kind of force, as is calculated to prevent any resistance. Per Lord Tenterden, C. J., Eliza Smyth's case, 5 C. and P. 201 (6).

Proof that the detainer was forcible.) The same circumstances of violence or terror which make an entry forcible will make a detainer forcible also; therefore, whoever keeps in his house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor, if he return, sball be adjudged guilty of a forcible detainer, though no attempt is made to re-enter; so also, it is said, if he place men at a distance from the house, to assault any one who shall attempt to make an entry; but barely refusing to go out of a house, and continuing therein in despite of another, is not a forcible detainer. Hawk. P. C. b. 1, c. 64, s. 30. So where a lessee at the end of his term, keeps árms in his house to prevent the entry of the lessor, or a lessee at will retains possession with force, after the determination of the will; these are forcible detainers. Com. Dig. Forc. Det. (B. 1.)

The statute 15 Ric. 2, only gave a remedy in cases of forcible detainer, where there had been a previous forcible entry; but the statute 8 Hen. 6, c. 9, gives a remedy for forcible detainer after a previous unlawful entry; for the entry may be unlawful though not forcible. Oakley's case, 4 B. and Ad. 307 (c). But it does not hence follow that the statute 8 Hen. 6, does not apply to the case of a tenant at will or for years, holding over after the will is determined, or the term expired; because the continuance in possession afterwards may amount, in judgment of law, to a new entry. Per Parke, J., Id. p. 312, citing Hawk. P. Č. b. 1, c. 64, s. 34.

A conviction for a forcible detainer is bad, if it only state that the prosecutor complained to the justices of an entry and unlawful expulsion and forcible detainer, and that they personally caine and found the defendant forcibly detaining the premises, whereupon they *convict bim, [ *435 ) &c. For the justices cannot know by their view without evidence that the detainer was unlawful, or that there had been an unlawful entry. Semble, that the conviction ought to show that the defendant was summoned, or had otherwise an opportunity to defend himself. Held also that the court was bound to award a re-restitution, as a consequence of quashing the conviction without inquiring into the legal or equitable claims of the respective parties. Wilson's case, 3 A. and E. 817 (d).

Proof of the possession upon which the entry was made.] With regard to the kind of entry, in respect of which a person may be guilty of a forcible entry, it is said by Hawkins to be a general rule, that a person may be indicted for a forcible entry into such incorporeal hereditaments, for which a writ of entry will lie either at common law, as for rent, or by statute, as for tithes ; but that there is no good authority that such an indictment 'will lie for a common or an office. So no violence offered in re

(a) Eng. Com. L. Rep. xii. 6. (b) Id. xxiv. 279. (c) Id. xxiv. 61. (d) Ids xxx. 229.

spect of a way or other easement, will make a forcible entry. Hawk.P.C. b. 1, c. 64, s. 31. Nor can a person be convicted under the 15 Ric. 2, of a detainer of any tenemnents, into which he could not have made a forcible entry.

Ibid. It is said by Hawkins, that it seems clear that no one can come within the intention of the statutes, by any force whatsoever done by him, on entering into a tenement whereof he himself had the sole and lawful possession, both at and before the time of such entry ; as by breaking open the door 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; or by forcibly entering into the land of his own tenant at will. The learned writer has added a “ sed quæreto this passage, and Lord Kenyon has observed that perhaps some doubt may hereafter arise respecting what Mr.Serjeant Hawkins says, that at common law the party may enter with force into that to which he has a legal title. Wilson's case, 8 T. R. 361.

The possession of a joint tenant, or tenant in common, is such a possession as may be the subject of a forcible entry or detainer by his co-tenant, for though the entry of the latter be lawful per mie et per tout, so that he cannot in any case be punished for it in an action of trespass, yet the lawfulness of the entry is no excuse for the violence. Hawk. P. C. b. I, c. 64, s. 33.

Upon an indictment founded on the 8 Hen. 6, it must be shown that the entry was upon a freehold; and if founded on the 21 Jac. 1, that it was upon a leasehold, &c., according to that statute. Wannop's case, Sayer, 142. On a prosecution for a forcible entry on the possession of a lessee for years, it is sufficient to prove that such lessee was possessed, although the indictment allege that the premises were his freehold. Lloyd's case, Cald. 415. Proof that the party holds colorably, as a freeholder or leaseholder, will suffice, for the Court will not, on the trial, enter into the [ *436 ] validity of *an adverse claim, which the party ought to assert by action and not by force. Per Vaughan, B., Williams's case, Talf. Dick. Sess. 239.

Proof that the offence was committed by the defendant.] This offence may be committed by one person as well as by several. Hawk. P. C. b. 1, c. 64, s. 29. All who accoinpany a man when he makes a forcible entry, will be adjudged to enter with him, whether they actually come upon the land or not. Id. s. 22. So also will those who, having an estate in land by a defensible title, continue by force in possession, after a elaim made by one who has a right of entry. Id. s. 23. But where several come in company with one who has a right to enter, and one of the company makes a forcible entry, that is not a forcible entry in the others. 3 Bac. Ab. Forcible Entry B.). And a person who barely agrees to a forcible entry made to his use, without his knowledge or privity, is not within the statutes, because he no way concurred in, or promoted the force. Hawk. P. C. b. 1, c. 64, s. 24.

An infant or feme-covert may be guilty of a forcible entry, for actual violence done by such party in person ; but not for violence done by others at their command, for such cominand is void. A feme-covert, it is said, may be imprisoned for such offence, though not an infant, because he shall not be subject to corporeal punishment, by force of the general words of

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