OFFENCE. PUNISHMENT. FALSE PERSONATION-continued. FALSE PRETENCES.-(See title CHEATING, ante, p. 60.) FISH. (See title LARCENY.) FISH-POND.-(See title MALICIOUS INJURIES.) FIXTURES, stealing. (See title LARCENY.) FORCIBLE ENTRY AND DETAINER-(a). HOLD. (M.) 5 Rich. II., st. 1., c. 8. Imprisonment, and ransom at the King's will; restitution of property. (A) Indictment.]-The indictment should be before justices of the sessions, as no other justices can award restitution, unless removed by certiorari into the Court of Queen's Bench; for though justices of Oyer and Terminer, and general gaol delivery, may inquire of forcible entries, and fine the parties, they cannot award restitution (1). The indictment must show on the face of it that the entry was with more force than in a common trespass; at least a breach of the peace must appear (2). An averment, that the defendant entered with a (1) 1 Hawk. c. 64, s. 36; Bac. Abr. (2) 8 T. R. 361, 2. For. Ent. (F); Dalt. c. 44. EVIDENCE. bail-piece — the identity of the defendant as the person who became bail-and call the party personated to show that he did not consent, and was not privy to the defendant becoming bail in his name. Rosc. Cr. Ev. 2 ed. 416; Arch. 12 ed. 491. Prec. of Indict. Arch. 490. OBSERVATIONS. Prove that the prosecutor was seised in fee of the premises in question, at the time of the forcible entry-prove the forcible entry-the expulsion, and that the prosecutor is kept out of possession. Rosc. Cr. Ev. 2 ed. 431; Arch. 12 ed. 682. Prec. of Indict. Arch. Id.; Matt. C.L. 474. A forcible entry or detainer is committed by violently taking or keeping possession of lands and tenements, with menaces, force and arms, and without the authority of the law (a). An indictment will lie for a forcible entry into such incorporeal hereditaments, for which a writ of entry will lie at common law, as for rent; or by statute, as for tithes (b); but not in respect of a Nor way or other easement, nor for a common, nor an office (c). does the statute extend to the case of a detainer of any tenements into which the party accused could not have made a forcible entry (d); nor where the party ousted had the bare custody of the premises for the defendant (e); but it extends to the forcible ouster of one joint tenant, or tenant in common by another (f); and to all hereditaments to which the defendant, if he had a right, might have asserted that right by a peaceable entry (g). As to the indictment, see p. 110, n.; as to what is a forcible entry, p. 112, n.; as to proof of the offence by the defendant, p. 113, n.; as to the proof of the expulsion, p. 113, n.; and as to restitution, p. 113, n. (a) 4 Bl. Com. 148. (b) See 1 Russ. 286. (d) Ibid; see post. (e) 1 Hawk. 36, 64, s. 32. (g) Arch. 12 ed. 683. "strong hand," will suffice; but the words "force and arms" merely, will not (3). The premises must be described with the same certainty as in a declaration of ejectment, on account of the restitution which follows conviction; and the indictment should show that an entry was made on the possession of some person who had an estate either of freehold or lease for years (4). Proof that à party who was alleged to be seised in fee was in actual possession of the (3) Styles, 136; Cro. Eliz. 461. (4) 1 Hawk. c. 64, ss. 37, 38; Bac. Abr. For. Ent. (E). See R. v. Wan- OFFENCE. PUNISHMENT. FORCIBLE ENTRY AND DETAINER-continued. Imprisonment and ransom at the King's will; restitution of property. Forcible Detainer. (M.) 8 Hen. IV. c. 9; and 21 Jas. I. c. 15. Same as supra. premises, and in receipt of the rents and profits, is sufficient prima facie evidence of his seisin (5). No indictment can warrant an award of restitution, unless it find that the wrongdoer both ousted the party grieved and continues his possession at the time of finding the indictment (6). The tenant of the premises is not a competent witness (7). What a forcible entry.]-The entry must be with some circumstances of actual violence or terror; such force only as is implied by law in every trespass, is not sufficient (8). A violent entry may be by beating the prosecutor, or any of his family, or servants, or persons keeping possession for him: or even by threats of personal violence, where the defendant is unusually armed or attended, so as to intimidate the prosecutor from defending his possession; or by breaking doors or windows, etc., whether any person be in the house or not, especially if a dwelling-house; and perhaps, by acts of outrage after the entry, as carrying away the party's goods (9). So also if while the owner is out of his house the defendant forcibly withhold him from returning, and in the meantime he sends persons to take possession of it peaceably (10). Also where a party having right, and whose entry is congeable, enters or makes claim, and the other party continues to hold possession by force; this is a forcible entry, because his estate is defeated by the entry or claim, and his continuance is a new entry (11). But it is not a forcible entry, if effected by threats to destroy goods or cattle, or to do similar damage, which is not personal; nor by entering an open window, nor opening a door with a key, nor by trick or artifice; and if a person, who pretends title to lands barely goes over them in his way to church or market, without doing any act implying (5) Jayne v. Price, 5 Taunt. 326; 1 Marsh. 68. Proof that a party holds colourably as a freeholder, is sufficient. Per Vaughan, B. ; Williams's case, Talf. Dick. Sess. 239. (6) 1 Hawk. c. 64, s. 37, et seq. Williams's case, 9 B. & C. 549; Bevan's case, Ry. & Mood. 242. (8) 1 Hawk. c. 64, s. 25; see also Smyth's case, 5 C. & P. 501. (9) 1 Hawk. c. 64, ss. 26, 27; see 3 Burr. 1702; and Miller v. Maclean, per Abbot, C. J., 2 C. & P. 18. (10) 1 Hawk. c. 64, s. 26. (11) 1 Hawk. c. 64, ss. 22, 34; Co. Litt. 251; see Oakley's case, 4 B. & Ad. 312, per Parke, J.; Com. Dig. Forc. Det. (B. 1). EVIDENCE. Prec. of Indict. Same as in the last case. Arch. 12 ed. 684; Matt. C. L. 475. OBSERVATIONS. See Observations, supra. Upon an indictment on this statute, it must be shown that the entry was upon a leasehold, etc., according to the statute (a). Where an indictment alleged that the entry was upon the prosecutor's freehold, proof that it was upon the possession of a lessee for years, and that he was possessed, was held sufficient (b). Proof that a party holds colourably, as a freeholder or leaseholder, will suffice, for the Court will not enter into the validity of an adverse claim which the party ought to try by action (c). (a) Wannop's case, Sayer, 142. (b) Lloyd's case, Cald. 415. Prove the seisin and possession as in the two last cases-an entry-the detaining by force. Rosc. Cr. Ev. 2 ed. 434; Arch. 12 ed. 684. Prec. of Indict. Matt. C. L. 475. Arch. Id.; (c) Per Vaughan, B., Williams's case, Talf. Dick. Sess. 239. The stat. 15 Rich. II. gave a remedy in cases of forcible detainer, where there had been a previous forcible entry; but the statute 8 Hen. VI. c. 9, gives a remedy for a forcible detainer after a previous unlawful entry; for the entry may be unlawful, a claim to such lands,-this is not an entry within the meaning of the statute (12). Proof that the offence was committed by the defendant.]-All who accompany a man when he makes a forcible entry, will be adjudged to enter with him, whether they actually come on the land or not (13); but if one among the company has a right to enter, and one of the company makes a forcible entry, that is not a forcible entry in the others (14). And a person who barely agrees to a forcible entry made to his use without his knowledge or privity, is not within the statute, because he in no way concurred in the force (15). This offence may be committed by one person as well as by several. So also by an infant or feme-covert, if actual violence be done by them in person, but not if done by others at their command, for such command is void (16). A fêmecovert may be guilty of a forcible entry by entering with violence into her husband's house (17). Expulsion-restitution.]—It is necessary to prove the expulsion, in order to obtain the restitution of the premises, given by the other statutes (18); and by the provisoes in these the defendants may set up a possession of three years, to stay the award of restitution; and a supersedeas of the award of restitution may be made by the same Court as made the award (19); and a re-restitution may be awarded by the Queen's Bench (20). If possession under a writ of restitution be avoided immediately by a fresh force, a second writ may be had without a new inquisition, if applied for in a reasonable time (21). 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 for a forcible entry (22). (12) 1 Hawk. c. 64, ss. 20, 26, 28; 1 Russ. 288; Com. Dig. Forc. Ent. (A. 3). (13) 1 Hawk. c. 64, s. 22; see Smith's case, 1 M. and Rob. 156. (14) 3 Bac. Abr. Forc. Ent. (B). 1 Hawk. c. 64, s. 24. (16) 1 Hawk. c. 64, ss. 29, 35. (17) Eliza Smyth's case, 5 C. & P. 201; 1 M. & Rob. 156. (18) 1 Hawk. c. 64, s. 41. (19) 8 Hen. VI. c. 9; 31 Eliz. c. 11, s. 3; 21 Jas. I. c. 15; 1 Hawk. c. 64, ss. 53, 61. (20) Id. 66; see Wilson's case, 3. A. & E. 817. (21) Harris's case, 1 Ld. Raym. 482. (22) Harland's case, 2 Lew. C. C. 170; 2 Mo. & Rob. 141; 8 Ad. & El. 826; see 1 Hawk. c. 64, s. 36. Bac. Abr. Forc. Ent. (F); and R. v. Hake, 4 M. & Ry. 483, n.. (A) At common law. The offence of forgery was punishable as a misdemeanour by the common law, and has been defined as "the fraudulent making or alteration of a writing to the prejudice of another man's right" (1). The falsification of records and other matters of a public nature, as a privy seal (2); of a license from the Barons of the Exchequer to compound debts (3); of a (1) 4 Bl. Com. 247; 2 East, P. C. (3) Id. 65; Gregory v. Wilkes 852. 2 Bulst. 137. (2) 1 Roll. Abb. 68. |