Was there force sufficient to alarm, so as to coerce surrender of possession, or to provoke a breach of the peace?1

§ 1095. It has been ruled that as possession of a dwellinghouse implies possession of its appurtenances, it is not Rule does indictable for a person who has peaceably and legally not apply obtained possession of a dwelling-house forcibly to break open an out-house appertaining thereto."

to outhouses when house

has been

entered.

But when the goods of the defendant in an execu- peaceably tion are in the house of a third person, or in a smokehouse within the curtilage of said third person, a demand for admittance by the officer holding the execution, and a refusal upon the part of the person holding the property, are necessary to justify the officer in breaking the door, and entering either house or smokehouse.3

§ 1096. An entry by an open window, or by opening the door with a key, or by mere trick or artifice, such as by enEntry by ticing the owner out, and then shutting the door upon trick not him, or the like, without further violence, or if effected by threats to destroy the owner's goods or cattle merely, and not by threats of personal violence," is not deemed a forcible entry.

4

"forcible."

Peaceable entry may

be followed

by forcible

detainer.

§ 1097. A peaceable entry may be followed, as will be seen, by a forcible detainer. Thus, where an intruder, having entered peaceably, said to the former possessor, "It will not be well for you, if you ever come upon the premises again by day or night," it was left to the jury whether this was a threat of personal violence, and so a forcible detainer within the statute: they having found it was, a conviction was held proper. And keeping forcibly a lessee out of possession to which he is entitled may be a forcible detainer. But a tenant entitled to possession may defend it by force adequate to the purpose."

5 1 Hawk. c. 64, s. 58; Burt v. State, 2 Tr. Con. R. 489.

6 Infra, §§ 1102, 1103.

7 People v. Rickert, 8 Cow. 226; Peo

ple v. Godfrey, 1 Hall, 240; People v. Anthony, 4 Johns. 198.

8 Com. v. Wisner, 8 Phila. 612.

9 Com. v. McNeile, 8 Phila. 438; Com. v. Haxton, Lewis C. L. 282.

§ 1098. Where a party having a right, enters or makes claim, and the other party afterwards continues to hold possession by force, this is considered a forcible entry in the party so holding; because his estate is defeated by the forcible en- entry or claim, and his continuance in possession is deemed a new entry.1

§ 1099. Where the party entering has in fact no right of entry, all persons in his company, as well those who do not use violence as those who do, are equally guilty; but if he have a right of entry, then those only who use or threaten violence, or who actually abet those who do, are guilty.

§ 1100. A landlord has no right to expel by violence even a tenant at will, and, as will be noticed more fully under another head, should he attempt it, he will be criminally responsible for the intrusion. "If the landlord," said Lord Kenyon," had entered with a strong hand to dis

possess the tenant with force (after the expiration of the term), he might have been indicted for a forcible entry." In a case immediately succeeding, the same judge declared it to be part of the law of the land that no man should assert his title with violence.2 It is true, that on a subsequent day of the term he stated that the court. desired that the grounds of their opinion might be understood, so that it should not be considered a precedent for other cases where it did not apply. He then proceeded: "Perhaps some doubt may hereafter arise respecting what Mr. Sergeant Hawkins says, that at common law the party may enter with force into that to which he has a legal title; but without giving any opinion concerning that dictum, one way or the other, but leaving it to be proved or disproved whenever the question shall arise, all that we wish to say is, that our opinion in this case leaves that question untouched." "But now," says Sir William Russell," there is no doubt that in England a party is indictable for forcible entry into premises in which he has a legal title." While this is the case, by a curious anomaly in the law three out of six judges in the Common Pleas, in a case already cited, held that the landlord was not responsible for a trespass, at the tenant's suit for redressing the latter, even though such force was used as to subject the landlord to a criminal prosecution. If this distinction be recognized, there can be no difficulty in reconciling with the law of forcible entry, the doctrine of the Supreme Court of Pennsylvania, that when a lease expires, the landlord may forcibly dispossess by night or by day the tenant whose lease has expired, with this limitation only, that he should use no greater force than might be necessary, and do no wanton damage. The plaintiff in such a case is "entitled to damages only for an injury he had suffered from unnecessary violence to his property." Still, on the distinction above stated, the defendant is liable to a criminal prosecution, if he enter with violence or with a multitude of persons, so as to

Taunton v. Costar, 7 T. R. 431.

2 R. v. Wilson, 8 T. R. 357.

31 Russ. on Cr. 9th Am. ed. 421. Newton v. Harland, 1 Man. & Gr. 664; 1 Scott N. R. 474; Butcher v. Butcher, 7 B. & C. 399; 1 M. & R. 220; Hilary v. Gray, 6 C. & P. 248; Turner v. Mey

mott, 7 Moore, 574; 1 Bing. 158; Pollin v. Brewer, 7 C. B. (N. S.) 371.

4 Newton v. Harland, supra.

5 Overdeer v. Lewis, 1 W. & S. 99. S. P., Rich v. Keyser, 54 Penn. St. 86. See R. v. Smyth, 1 M. & Rob. 156; 5 C. & P. 201.

constitute or provoke a breach of the peace.' The reason of the distinction is this: The dispossessed party cannot complain in a civii suit of his dispossession, unless a personal assault was made on him with undue force, as he had no right to remain on the premises. And though there may have been a riot, he cannot sue civilly for this, which is an offence, not against him, but against the public. The only remedy is a criminal prosecution.2

Owner may forcibly

enter against a mere intruder.

§ 1101. Yet where the prosecutor is a mere intruder, without color of title, past or present, and has entered by fraud or violence, or on a mere scrambling title, the owner may forcibly enter. This has been seen to be the case when the possession is held by one claiming mere custody under the owner, but refusing entrance to the owner. It was, therefore, rightly ruled by Lord Campbell, C. J., that a person having no possession or title to premises, but fraudulently pretending to have such title, and so allowed by the servant of the true owner to enter, does not acquire actual possession, but may be expelled by force."

Legal right to enter necessary to writ of restitution.

§ 1102. For the purpose of obtaining restitution, it is necessary to prove that the prosecutor is still kept out of possession, and it is plain that this right of possession on the part of the prosecutor must be legal, and that if he has no right to enter he cannot maintain a forcible detainer." § 1103. As has already been incidentally observed, there may be a forcible detainer, though the entry is peaceable. It is sufficient if it appear from the indictment that the party aggrieved had title, and was forcibly kept out of possession. But where the entry was peaceable and

Forcible

detainer to

be inferred

from facts.

1 Com. v. Kensey, ut supra. That at common law the owner may take his property by force, see supra, §§ 97-8; Penn. v. Robinson, Add. 14; Com. v. Rees, 2 Brewst. 564. See Aldrich v. Wright, 53 N. H. 398.

Com. v. Keeper of Prison, 1 Ashm. 140; Com. v. Conway, 1 Brewst. 509. See infra, § 1104. That it makes no difference that the owner was temporarily absent, having left the house in charge of a member of his family, see State v. Shepard, 82 N. C. 614.

Supra, § 1087. See Shotwell, ex parte, 10 Johns. 304; State v. Curtis, 4 Dev. & Bat. 222.

5 Collins v. Thomas, 1 F. & F. 416. 61 Hawk. c. 64, s. 41; Burd v. Com., 6 S. & R. 252.

7 See infra, § 1111.

8 Com. v. Rogers, 1 S. & R. 124; Com. v. Wisner, 8 Phila. 612; Burt v. State, 3 Brev. 413; 3 Tr. Con. Rep. 489.

Forcible detainer does not lie against a party holding under a writ regular

7:

the continued possession lawful, forcible detainer cannot be maintained.1

The same circumstances evincing violence which will make an entry forcible will make a detainer forcible also; and whoever keeps in the house an unusual number of people, or unusual weapons, in a way indicating violence, or threatens in such connection to do some bodily hurt to the former possessor if he dare return, may be adjudged guilty of a forcible detainer, though no attempt be made to reënter. But merely refusing to go out of the house, or denying possession, by a tenant at will, to a lessor, is not a forcible holding within the meaning of the statutes.*

At common

law only possession is necessary to prosecu

tion.

As will presently be more fully seen, the offences are divisible." § 1104. Under 5 Ric. II. the prosecutor must aver a freehold, and under 21 Jac. I. a leasehold; but, it seems, proof that he was in actual occupation of the premises, or in the reception of the rents and profits, is sufficient evidence of seisin. At common law, however, no allegation beyond possession was necessary, when the object was only to obtain punishment for the violent invasion of the prosecutor's rights, and of course mere possession was sufficient to support the prosecution. But a mere scrambling possession will not be enough to sustain an indictment even at common law. Nor is surveying land, building cabins, and leaving them unoccupied, such possession as is necessary.9

on its face, issued from a court of competent jurisdiction, though the issuing was improvident. Voss v. State, 93 Ind. 211.

274; People v. Van Nostrand, 9 Wend. 52.

71 Hawk. 274; 4 Blac. Com. 148; R. v. Wilson, 8 T. R. 357; Taylor v.

1 Com. v. McNeile, 8 Phila. 438; Cole, 3 Ibid. 292; Newton v. Harland, State v. Godsey, 13 Ired. 348.

1 Man. & Gr. 654, 926; R. v. Child, 2

* People v. Rickert, 8 Cow. 226, and Cox C. C. 102; Harding's Case, 1 cases cited supra, § 1096.

31 Hawk. c. 64, s. 30. See Com. v.

Greenleaf, 31; Langdon v. Potter, 3 Mass. 215; People v. Leonard, 11 McNeile, 8 Phila. 438. Johns. 504; Com. v. Kensey, 5 Penn. 4 See R. v. Oakley, 4 B. & Ad. 307; Law Jour. 119; State v. Anders, 8 Ired. R. v. Wilson, 3 Ad. & El. 817. 15; State v. Bennett, 4 Dev. & Bat. 43;

5 Burd r. Com., 6 S. & R. 252. See State v. Speirin, 1 Brev. 119. infra, § 1110.

• Jayne v. Price, 5 Taunt. 326; 1 Marsh. 68; 4 Bl. Com. 148; 1 Hawk.

$ See cases cited supra, § 1101; Shotwell, er parte, 10 Johns. 304.

9 Penn. v. Waddle, Addis. 41. See supra, § 1101.