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 (b).

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, shall 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 him, [ *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) Id 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 tenements, 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 quare" to 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. 1, 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 accompany a man when he makes a forcible entry, will be adjudged to enter with him, whether they actually come upon the land or not. ld. s. 22. So also will those who, having an estate in land by a defensible title, continue by force in possession, after a claim 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 command 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

any statute in which he is not expressly named. Hawk. P. C. b. 1, c. 64, s. 35. A feme-covert may be guilty of a forcible entry, by entering with violence into her husband's house. Eliza Smyth's case, 5 C. and P. 201 (a).

Award of restitution.] The court in which the indictment is found, or the Court of King's Bench upon the removal thither of the indictment by certiorari, has power on the conviction of the defendant, to award restitution to the party upon whose possession the entry has been made. Hawk. P. C. b. 1, c. 64, s. 49, 50, 51. Though by the provisoes in the statutes of Hen. 6, and James 1, the defendants may set up a possession for three years to stay the award of restitution. Id. s. 53. A supersedeas of the award of restitution may be granted by the same Court that made the award. ld. s. 61. And a re-restitution may be awarded by the King's Bench. Id. s. 66. See Wilson's case, ante, p. 435.

Before conviction it is in the discretion of the judge of assize to award a restitution or not, although a true bill has been found by the grand jury for a forcible entry. Harland's case, 2 Lew. C. C. 170.

Witnesses.] The tenant of the premises is not a competent witness. Williams's case, 9 B. and C. 549 (b); Beavan's case, Ry. and Moo. 342 (c), ante, p. 130.

*FORESTALLING, &c.

[ *437]

The offence of forestalling, with which may likewise be considered those of engrossing and regrating, is defined to be every practice or device, by act, conspiracy, words, or news, to enhance the price of victuals, or other merchandize. 3 Inst. 196; 3 Bac. Ab. 261; 1 Russ. 169. All endeavors whatever to enhance the common price of any merchandize, and all kinds of practice which have an apparent tendency thereto, whether by spreading false rumors, or by buying things in a market before the accustomed hour, are offences at common law, and come under the general notion of forestalling, which includes all kind of offences of this nature. Hawk. P. C. b. 1, c. 80, s. 1. These offences were prohibited by several old statutes, but those acts were repealed by the 12 Geo. 3, c. 71; leaving the offences as they stood at common law, and punishable by fine or imprisonment, or both.

In modern times prosecutions have seldom been instituted for any of these offences; but in the following case an information for enhancing the price of hops was sustained. The defendant was charged in the first count with spreading false rumors, with intent to enhance the price of hops, in the hearing of hop-planters, dealers, and others, that the stock of hops was nearly exhausted, and that there would be a scarcity of hops, &c., with intent to induce them not to bring their hops to market for sale, and thereby greatly to enhance the price. It appeared that the defendant having a stock of hops on hand, declared to the sellers that they were too cheap, and to the planters that they had not a fair price for their hops,

(a) Eng. Com. L. Rep. xxiv. 279. (b) Id. xvii. 440. (e) Id. xxi. 428.

and contracted for one-fifth of the produce of Worcestershire and Hertfordshire, where he had a stock in hand, and admitted that he did not want to purchase. The defendant being convicted, moved in arrest of judgment, but the Court refused the motion. Waddington's case, 1 East,

143.

Upon a prosecution for an offence of this nature, the prosecutor must prove, 1st, the act of forestalling, regrating, &c.; and 2dly, the object with which that act was done. It must appear that he has made his purchases, not in the fair course of dealing, with a view of afterwards dispersing the goods in proportion to the wants and conveniences of the public, but with a view to enhance the price of the commodity, and to deprive the people of their ordinary subsistence, or compel them to purchase it at an exorbitant price. Per Lord Kenyon, Waddington's case, 1 East, 143.

Under the present head will first be stated, the law of forgery, as it regards all forged instruments, with the general proofs necessary to estab

473

Forgery of other public documents

Proof of engraving any word,

&c.

Proof of making, &c., mould for
manufacturing paper
Proof of engraving bill of ex-
change, &c.

:

Proof of engraving foreign bills
.or notes, &c.

| Forgery of entries in public registers
Forgery of stamps

491

491

492

493

494

496

499

lish the act of forging, uttering, &c. The evidence required to prove the forgery of particular documents, both private and public, will then be given.

Forgery at common law.] At common law the offence of forgery was punishable as a misdemeanor. It is defined by Sir W. Blackstone as "the fraudulent making or alteration of a writing to the prejudice of another man's right;" 4 Com. 247; and by Mr. East, as "a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit." 2 East, P. C. 852.

With regard to the nature of the instruments or writings, the forging of which is punishable at common law, it has been held that the falsification of records and other matters of a public nature is a misdemeanor, as a privy seal; 1 Roll. Ab. 68; a license from the Barons of the Exchequer to compound debts; Id. 65; Gregory v. Wilks, 2 Bulst. 137; a parish register; Hawk. P. C. b. 1, c. 70; or a certificate of holy orders, or any matter of record. Hawk. P. C. b. 1, c. 70, s. 9, 10. So a forged letter, in the name of a magistrate, to the governor of a gaol, directing the discharge of a prisoner, has been held to be a forgery. Harris's case, 6 C. and P. 129 (a); 1 Moody, C. C. 393 (b), S. C. And see Fawcett's case, 2 East, P. C. 862, post, p. 440.

"

So with regard to private writings, it is an offence at common law to forge a deed or will. Hawk. P. C. b. 1, c. 70, s. 10. And though doubts were formerly entertained on the subject, it is now clear that forging any private document, with a fraudulent intent, and whereby another person may be prejudiced, is within the rule (1). Thus, after [ *440 ] much debate, it was held that forging an order for the delivery of goods was a misdemeanor at common law. Ward's case, Str. 747; 2 Ld. Raym. 1461. And the same was held by a majority of the judges, with regard to a document purporting to be a discharge from a creditor to a gaoler, directing him to discharge a prisoner in his custody. Fawcett's case, 2 East, P. C. 862. Ward's case is considered by Mr. East to have settled the rule, that the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 East, P. C. 861.

Upon an indictment for forgery at common law, it must appear in the indictment what the instrument is, in respect of which the prisoner is charged. The prisoner was indicted for forging a certain paper instrument in the words and figures following:

"Fol. 44, 4, Sarum public weighing engine, July 27, 1802. One load of coals from Mr. Wilcox to Mr. Webb.

(1) Ames' case, 2 Greenl. 365. Pennsylvania v. M'Kee, Addis. 33.
(a) Eng. Com. L. Rep, xxv. 315. (b) 2 Eng. C. C. 393.