issue. § 1105. As we have seen, the defendant cannot go into evidence Title not at to disprove the title of the complainant,1 or to establish his own, as the question is not one of civil right, but of public mischief. Even where a tenant holds over beyond the period fixed by his lease, and the landlord makes forcible entry for any purpose, though the tenant cannot maintain a trespass, quare clausum, the landlord cannot justify a personal injury committed on the tenant in such entry. If he attempt to dispossess his tenant by undue violence, he is criminally responsible for the consequences, and may be punished for the breach of the peace, though he is at the time merely asserting his civil rights." It must be remembered, however, that the possession must be actual and not constructive. Two persons cannot be in possession of the same land at the same time (i. e., adversely); and whenever the unlawful entry of one with force necessarily dispossesses the other, an indictment for forcible entry may be maintained. Prosecutor force. 6 § 1106. The prosecutor is at common law not a witness to prove anything more than the force used; and he is inadmay prove missible, therefore, to sustain an indictment for the purpose of restitution. The wife, also, of the prosecutor is admissible to prove the force, but only the force. Of course, in States where interest does not disqualify, these rulings do not apply. Indictment must con II. INDICTMENT.8 § 1107. Greater force must be averred than is extain techni- pressed by vi et armis. The words, "and with strong hand," should not be omitted.10 cal terms. 1 Dutton v. Tracy, 4 Conn. 79. People v. Rickert, 8 Cow. 226; People v. Godfrey, 1 Hall, 240; People v. Anthony, 4 Johns. 198; Resp. v. Schryber, 1 Dall. 68; Bennett v. State, 1 Rice S. C. Digest, 340. Sampson v. Henry, 13 Pick. 36; though see Overdeer v. Lewis, 1 W. & S. 90. Supra, § 1100. 4 Taylor v. Cole, 3 T. R. 292; Taunton v. Costar, 7 Ibid. 427; Turner v. Meymott, 8 Eng. C. L. 280; 7 Moore, 574; Newton v. Harland, 2 Man. & Gr. 654, 956; Com. v. Kensey, 5 Penn. L. 9 R. v. Wilson, 8 T. R. 357. See Harding's Case, 1 Greenl. 27. 10 Whart. Cr. Pl. & Pr. § 270; R. v. For com mon law offence posonly need session be averred. § 1108. It is necessary, as has been stated, under the English statutes, to aver either a leasehold or a freehold in the prosecutor; though proof of actual possession is sufficient to support the allegation in the indictment that the complainant was possessed in fee simple. At common law, as we have also noticed, mere possession is all that need be laid. But, as is elsewhere seen, an indictment stating a naked possession merely in the prosecutor, without laying any estate or interest in him, is not sufficient to authorize an award of restitution. Such an allegation, however, will be sufficient to support an indictment for the forcible entry at common law as a breach of the peace; though it has been said that as a forcible detainer is not an offence at common law, an indictment for that offence should always aver the prosecutor's estate in the premises." An allegation in the indictment that the prosecutor was disseised, necessarily implies a previous seisin." § 1109. The indictment must describe the premises entered with the same particularity as in ejectment. Thus, an indictment of for Baker, 11 Mod. 235; Com. v. Shattuck, 4 Cush. 141; State v. Whitfield, 8 Ired. 315. Yet for the mere common law offence convertible terms may be used. R. v. Bake, 3 Burr. 1731. Archbold's C. P. 566. So in New Hampshire. State v. Pearson, 2 N. H. 550. The proof as to the application of force must correspond with the indictment. Thus where an indictment laid the force against the seisin of A., it was ruled that evidence was not admissible of an entry on land leased by A. and B. to C., and of force against C. Resp. v. Sloane, 2 Yeates, 229; Penn. v. Grier, 1 Smith's Laws, 3. And as to other cases of variance, see infra, § 1009. 24 Bl. Com. 148; 1 Hawk. 274; People v. Van Nostrand, 9 Wend, 50. Supra, § 1104. 3 4 ♦ Infra, § 1111. v. Kensey, 5 Penn. L. J. 119; 2 Pars. 114. 6 Com. v. Toram, 6 Penn. L. J. 296; 2 Pars. 411. An indictment charging that A. was "peaceably possessed in his demesne, as of fee," of certain lands, "and continued so seised and possessed" until B. "thereof disseised" him, and "him so disseised and expelled," did keep out, etc., was held good on error; Fitch v. Remp., 3 Yeates, 49; 4 Dall. 212; and so where the indictment stated that the prosecutor was seised in his demesne as of fee, and that his " peaceable possession thereof, as aforesaid, continued until," etc., the latter words being rejected as surplusage. Resp. v. Schryber, 1 Dall. 68. Com. v. Taylor, 5 Binn. 277; Com. to be good. Ibid. VOL. II.-3 7 Com. v. Fitch, 4 Dall. 212. Premises must be described as in ejectment. cible entry into a messuage, tenement, and tract of land, without mentioning the number of acres, was held bad after conviction.1 Certainty to a reasonable intent is all that is required in the description." Entry and detainer are divisible. § 1110. Although a forcible entry and forcible detainer are charged in the same indictment, they are nevertheless distinct offences, and the defendant may be acquitted of one and convicted of the other. If one be defectively set out, he may be convicted of that which is well set out. § 1111. To enable the court to award restitution on a conviction for forcible detainer, it is necessary that there should be an estate, M'Naire v. Remp., 4 Yeates, 326; acres of land adjacent thereto, at the Dean v. Com., 3 S. & R. 418. 2 Torrence v. Com., 9 Barr, 184. Where the indictment was for forcible entry and detainer of a messuage in possession of A. for a term of years, and the evidence was of forcible entry into a field, and no lease was produced, it was held that the indictment could not be supported. Penn. v. Elder, 1 Smith's Laws, 3. And so where the indictment averred forcible entry on a field, and it was proved that the attack was on a house. State v. Smith, 2 Ired. and see Resp. v. Sloane, 2 Yeates, 127; 229. M. and U. cross-roads in E. township in A. county," is, it seems, a sufficient description of the premises to support an award of restitution in forcible entry and detainer. Torrence v. Com., 9 Barr, 184. And so as to "all that piece of land containing seventy-six acres and one hundred and fifty perches, and the allowance of six per cent., it being part of a large tract known as the Peter Jackson improvement, adjoining lands of David Henderson on the east." Van Pool v. Com., 13 Penn. St. 391. See R. v. Studd, 14 W. R. 806; Atwood v. Joliffe, 3 New Sess. Cas. Q. B. 116. When restitution is not claimed, it is enough to aver possession alone. That such is the case has been already stated, as here the defendant proceeds merely for the offence at common law. Supra, § 1108. People v. Rickert, 8 Cow. 226; People v. Godfrey, 1 Hall, 240; People v. Anthony, 4 Johns. 198; Com. v. Rogers, 1 S. & R. 124; Burd v. Com., 6 Ibid. 252; State v. Ward, 1 Jones (N. C.), 290. See Whart. Cr. Pl. & Pr. §§ 736 et seq.; Whart. Crim. Ev. § 129. Title is necessary tion. either freehold or leasehold, averred in the prosecutor.1 Thus where an indictment stated that A. "was lawfully and peaceably seised" of the premises, and that B., son of A., "was lawfully in possession of the same," and that to restitu"the defendant entered and expelled the said B. from possession of the premises, and forcibly disseised the said A. of the same, and the said B. so expelled and held that it was error to award restitution to A.2 been held sufficient for the purposes of restitution to aver that the estate was "in the possession of W. P., he, W. P., then and there being also seised thereof." out," etc., it was held Yet it has in England Indictment for forcible trespass on persoualty must aver violence. "with § 1112. Indictments for forcible trespass on personalty are rare at common law, since it is much simpler to indict for an assault, which, as has been seen, is a usual ingredient in a forcible trespass. If, however, an indictment of this kind should be framed, it is necessary to aver actual possession in the prosecutor, and violence offered to him, or violent wresting of the chattel from him, so as to constitute a breach of the peace. Yet, it is enough to say that the defendant, strong hand," and against his will, took, etc., the chattel from the possession of the prosecutor, in whose possession it then and there was. If sufficient violence to constitute a robbery be alleged, then the prosecution must try, not for forcible trespass, but for robbery. Under these circumstances, common law indictments for a forcible trespass have been rarely attempted. It must be kept in mind, in considering this question, that a party has at common law the right to rescue even by force (if such force be not excessive) his property from the hands of another. If, however, in doing this, he 1 R. v. Bowser, 8 D. P. C. 128; 1 Wil., W. & H. 345; R. v. Taylor, 7 Mod. 123; Resp. v. Campbell, 1 Dall. 354; State v. Speirin, 1 Brev. 119. Burd v. Com., 6 S. & R. 252. See R. v. Depnke, 11 Mod. 273; Com. v. Toram, 5 Penn. L. J. 297; 2 Pars. 411; Torrence v. Com., 9 Barr, 184; Van Pool v. Com., 13 Penn. St. 391; State v. Bennett, 4 Dev. & Bat. 43; State v. Anders, 8 Ired. 15. See 1 Russ. on Cr. 9th Am. ed. 431. R. v. Hoare, 6 M. & S. 266; R. v. Dillon, 2 Chit. 314. See supra, § 1092. 6 State v. Mills, 2 Dev. 420: State v. Watkins, 4 Humph. 256. 6 State v. Mills, ut supra. 7 For a recent instance, where a prosecution of this class was sustained, see State v. McAdden, 71 N. C. 207. • Supra, § 100. 1 Russ. on Cr. ut sup. 421; Blades v. Higgs, 10 C. B. (N. S.) 713; See State v. Covington, 70 N. C. 71. use unnecessary force, or stimulate a riotous demonstration, he is indictable.' Practice to sustain summary convictions. § 1113. Of summary convictions by justices under 15 Ric. II. c. 2; and 8 Hen. VI. c. 9, there are no reported American cases. In England it is held that to sustain the procedure there must be alleged and proved an unlawful entry as well as a forcible detainer. Where a conviction stated that justices had convicted A. of forcible detainer upon their own view, and that afterwards a complaint was made to the justices that A. forcibly entered the premises, and that notice of such complaint was given to A., who received it, but said nothing, and then went on to allege that the justices received evidence on oath of the unlawful entry; it was held that the conviction was bad, for not showing that A. had been summoned to answer the charge of the unlawful entry, or that he had had an opportunity afforded him of defending himself against such charge.3 1 State v. Armfield, 5 Ired. 207; State v. McCanless, 9 Ired. 375; State v. Simpson, 1 Dev. 504. Supra, § 1100. See Mr. Henry Wharton's note to Blades v. Higgs, 10 C. B. N. S. 713 (100 Eng. Com. L.) Atwood v. Joliffe, 3 New. Ses. Cas. 36 Q. B. 116; R. v. Oakley, 4 B. & Ad. 307; 1 N. & M. 58; R. v. Wilson, 5 Ibid. 164; 3 Ad. & El. 817. As to procedure, see R. v. Wilson, 3 N. & M. 753; 1 Ad. & El. 627. Atwood v. Joliffe, ut supra. v. Studd, 14 W. R. 806. See R. |