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(6.) Title. $ 2048. It is necessary, as has been stated, under the English statutes, to aver either a leasehold or a freehold in the prosecutor; h though, as has been said, proof of actual possession is sufficient to support the allegation in the inquisition that the complainant was possessed in fee simple. i At common law, however, mere possession is all that need be laid. ; But 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. k Such an allegation, however, will be sufficient to support an indictment for the forcible entry at common law, as a breach of the peace;l though it has been said that 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. m
§ 2049. 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, &c., was held good on error; n 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," &c., the latter words being rejected as surplusage.
An indictment stating that the prosecutor “ was seised,” without stating when he was seised, was held to be good. p
for the mere common law off ce con- Torrence v. Com. Barr, 184; Van vertible terms may be used. R. v. Pool v. Com. 1 Harris, 391 ; Com. v. Bake, 3 Bur. 1731.
Toram, 2 Parsons, 411; State v. Benh Archbold's C. P.566. So in New nett, 4 Dev. & Bat. 43. Hampshire State v. Pearson, 2 N. 1 Com. v. Taylor, 5 Binney, 281 ; H. 550.
Com. v. Kinsey, 5 Penn. Law Jour. i 4 Bl. Com. 148; 1 Hawk. 274; 119; 2 Pars. 114. People v. Van Nostrand, 9 Wendell, m Com. v. Toram, 6 Penn. Law 50.
Journ. 296; 2 Parsons, 411. į R. v. Child, 2 Cox C. C. 102; R. n Fitch et al. v. Rempublicam, 3 v. Wilson, 8 T. R. 357; Harding's Yea. 49; S. C. 4 Dall. 212. case, 1 Greenleaf, 27; 2 Dev. 420 ; 1 o Respublica v. Schryber et al. 1 Brevard, 119.
Dal. 68. k Burd v. Com. 6 Serg. & R. 252; Resp. v. Campbell, 1 Dallas, 854;
An allegation, in the indictment, that the prosecutor was disseised, necessarily implies a previous seisin. q
(c.) Description of Property. § 2050. The indictment must describe the premises entered with the same particularity as in ejectment. Thus, an indictment of forcible entry into a messuage, tenement, and tract of land, without mentioning the number of acres, was held bad, after conviction.r
Certainty to a reasonable intent is all that is required in the description. 8
§ 2051. 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.t And so where the indictment averred forcible entry on a field, and it was proved that the attack was on a house. t1
$ 2052. Where the words were, " a certain messuage with the appurtenances, for a term of years, in the district of Spartanburg,” it was adjudged that the place where was not described with sufficient legal certainty. u
§ 2053. It is sufficient to describe the premises as “a certain close of two acres of arable land, situate in S. township, in the county of H., being a part of a larger tract of land adjoining lands of A. and B.” v
(d.) Forcible Entry and Forcible Detainer divisible. § 2054. 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 is defectively set out, he may be convicted of that that is well set out. w 9 Com. v. Fitch, 4 Dall. 212.
v Dean et al. v. Com. 3 S. & R. r M'Naire et al. v. Rempublicam, 4 418. Yea. 326; Dean v. Com. 3 S. & R. 418. w People v. Rickert, 8 Cowen, 226;
s Torrence v. Com. 9 Barr, 184. People v. Godfrey, 1 Hill, 240; Peoi Penn. v. Elder, 1 Smith's Laws, 3. ple v. Anthony, 4 Johns. 198; Com. v.
i State v. Smith, 2 Ired. 127; and Rogers, 1 Serg. & R. 124 ; State v. see Resp. v. Sloane, 2 Yea. 229. Ward, 1 Jones N. C. 290; Burd v.
u State v. Walker and Davidson, Com. 6 S. & R. 252. See ante, $ 616Brev. MSS.
(e.) Title necessary to Restitution. § 2054 a. But to enable the court to award restitution on a conviction for forcible detainer, it is necessary that there should be an estate, either freehold or leasehold, averred in the prosecu
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 “ 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 out,” &c., it was held that it was error to award restitution to A. y Yet it has in England 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."
$ 2055. “A certain tavern stand, with the appurtenances, including about five acres of land adjacent thereto, at the 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, a
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.” 6
When restitution is not claimed, it is enough to aver possession alone. — That such is the case has been already stated, as in this case the defendant proceeds merely for the offence at common law.c
2 R. v. Bowser, 8 D. P. C. 128; 1 z R. v. Hoare, 6 M. & S. 266; R. . Wil. W. & H. 345; Res. v. Campbell, Dillon, 2 Chit. 314. 1 Dall. 354; R. v. Taylor, 7 Mod. 123; a Torrence v. Com. 9 Barr, 184. State v. Speirin, 1 Brev. 119.
b Van Pool v. Com. 1 Harris, 391. y Burd v. Com. 6 Serg. & R. 252; See R. v. Studd, 14 W. R. 806; AtCom. v. Toram, 5 Penn. Law Journ. wood v. Joliffe, 3 New Sess. Cases, 297; 2 Pars. 411; R. v. Depuke, 116, Q. B. Mod.; but see R. v. Dillon, 2 Chit. c Ante, $ 2048. 314, where it was held that “ seised” was enough.
(f.) Forcible Trespass on Personalty. § 2055 a. Indictments of this class are rare at common law, since it is much simpler to indict for an assault, which, as has been seen, d 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. e Yet it is enough to say that the defendant, “ with strong hand,” and against his will, took, &c., the chattel from the possession of the prosecutor, in whose possession it then and there was. f If sufficient violence to constitute a robbery is alleged, then the prosecution binds itself to try, not for forcible trespass, but for robbery. Under these circumstances, common law indictments for a forcible trespass have been rarely attempted, and are now obsolete.
6. Summary Convictions by Justices under 15 Rich. 2, c. 2; and
8 Hen. 6, c. 9. $ 2055 6. Of such convictions 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.g 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 the notice, 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 any opportunity afforded him of defending himself against such charge. h d See ante, $ 2031 a.
Ad. 307 ; 1 N. & M. 58 ; R. v. Wilson, e State v. Mills, 2 Devereux, 420; 5 N. & M. 164; 3 Ad. & E. 817. As State v. Watkins, 4 Humph. 256. to procedure, see R. v. Wilson, 3 N. & f State v. Mills, ut supra.
M. 753 ; 1 Ad. & E. 627. g Atwood v. Joliffe, 3 New Sess.
h Atwood v. Joliffe, ut supra. See Cas. 116, Q. B.; R. v. Oakley, 4 B. & R. v. Studd, 14 W. R. 806.
I. CHEATS AT COMMON LAW, $ 2056. 1. CHEATS AFFECTING PUBLIC JUSTICE,
KENS, $ 2057.
and when not indictable, $ 2058.
must be latent and directed to the
public generally, $ 2059.
§ 2059 a.
marks, and authors' names, $
2061 a. (h.) But not so of cheats where the
falsity is not latent and where the fraud is not addressed to the public at large ; e. g. false warranties, reading false papers to an individual and thus obtaining his signature, and false pretences
made to an individual, $ 2002. (i.) Reasons for the distinction be
tween public and private cheats,
(a.) Persons cheated, $ 2067.
I. CHEATS AT COMMON LAW a. § 2056. CHEATS, punishable at common law, may in general be described to be such cheats (not amounting to felony) as affect, or may affect, the public, and are effected by deceitful or illegal practices, against which common prudence could not have guarded. 6
a See Wh. Prec., as follows: (504) Obtaining goods by means of (499) Selling by false weight or meas- a sham bank note, as a misdemeanor
at common law. (500) Against a baker for selling (505) Cheat by means of a counterfeit loaves to poor
under letter. weight, and obtaining pay from See “ Secreting Goods,” &c., “ False them under the pretence that they Personation,” “ Fraudulent Insolrenwere of full weight.
cy,” “Factors,” “ False Pretences." (501) Cheating at common law by And see, also, 7 Law Rep. (N. S.) 81. false cards.
b 2 East P. C. ch. 18, s. (502) Second count. Cheating at Hawk. P. C. ch. 22, s. 1; 2 Russ. on
common law, at a game of dice Cr. 6th Am. ed. 275; Com. 4. Morse, called Passage.
2 Mass. 139; People v. Miller, 14 John(503) Information. Passing a sham son, 317; People v. Babcock, 7 John
bank note, the offence being charged son, 201; Cross v. Peters, 1 Greenleaf, as a false token.
4, p. 821;?