of any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish ;

or shall unlawfully and maliciously put any lime or other noxious material in any such pond or water with intent thereby to destroy any of the fish therein (r): every such offender shall be guilty of a misdemeanour, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and, if a male, to be once, twice or thrice publicly or privately whipped, if the court shall so think fit, in addition to such imprisonment. Hard labour may be added and solitary confinement, by 7 & 8 G. IV. c. 30, s. 27; but the latter infliction is now regulated by 1 V. c. 90, s. 5; which, see post.

Indictment for breaking the Dam of a Fish-pond (s).

That A. B. late of, &c. at, &c. the dam of a certain fish-pond [see other waters described in the act, supra] of one J. N. there situate, then and there unlawfully and maliciously did break down and destroy with intent thereby then and there to take and destroy the fish in the said pond then and there being [or, and did thereby then and there cause the loss and destruction of divers of the fish in the said pond then and there being], against the form of the statute, &c., and against the peace, &c.

Indictment for putting Lime, &c., into a Fish-pond (t).

That A. B., late of, &c. at, &c. unlawfully and maliciously did put a large quantity, to wit, two bushels of lime, into a certain fish-pond [see other waters described in the act] of one J. N. there situate, with intent thereby then and there to destroy the fish in the said pond then and there being, against the form, &c., and against the peace, &c.

SECTION XIII.

FORCIBLE ENTRY AND DETAINER.

Offence.]-The assertion of right to lands or houses by force has always been discouraged by courts, from a just apprehension of the tumults to which such proceedings may lead. Although, therefore,

(r) A provision follows in this section against breaking the dam of a mill pond with a similar punishment.

(s) See Archb. Cr. Pl. & Ev. 287, 6th ed.

(t) Id. ibid.

no indictment will lie for a mere trespass, accompanied only by constructive force, yet it seems to be established that an entry on land or into a house, garden, &c. or a church, though no one be therein, with such actual violence as amounts to an unlawful act, or public breach of the peace(u), expressed in law to be" with force and arms and a strong hand"(x), e. g. bringing unusual weapons, threatening violence, breaking open a door, or violent ejection of the possessor of a house(y), is an offence indictable at common law, as a forcible entry; though the statutes give other remedies to the parties grieved, viz. restitution and damages; and that the illegal and violent maintenance of possession, if the entry was unlawful, is, in like manner, indictable as a forcible detainer (z). To sustain such an indictment at common law, it seems that no circumstances of great public violence or terror are necessary; for it is laid down (a) “ that an entry may be said to be forcible, not only in respect of violence actually done to the person of a man, as by beating him if he refuse to relinquish his possession, but also in respect of any violence in the manner of entry, as by breaking open the doors of a house, whether any person be in it at the same time or not, especially if it be a dwellinghouse." The offence of forcible entry at common law is punishable by fine or imprisonment in respect of the injury done to the public peace.

Forcible Entry within the Statutes.]—But further to discourage the attempts of parties to assert their claims by violence, statutes were passed in very early times, not merely to annex punishment to the offence of entering by strong hand on a peaceable possession, but to grant restitution to the party dispossessed on the conviction of the offender. After, therefore, the statute 5 R. 2. sess. 1, c. 8, had declared the law, "that none should make entry into lands and tenements but in cases where entry is given by the law, nor in such cases, with strong hand

nor with multitude (b) of people, but only in a peaceable and easy manner, on pain of imprisonment and ransom," the statute 15 R. II. c. 2, gave a remedy by summary commitment of the offender till fine and ransom; and by 8 H. VI. c. 9, this provision was extended to cases of forcible detainer, and justices of the peace were empowered to restore the premises to the former possessor, where the force had been found by a jury summoned by them (c). On these statutes it was doubted whether any but a freeholder could have restitution; and, therefore, the 21 J. I. c. 25, applied the power conferred by the former acts to the restitution of possession of which tenants for terms of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit, statute merchant, or statute staple, had been forcibly deprived; on this account the prosecutor's interest in the premises must be stated in the indictment (d). Under these acts, therefore, a prosecutor who is a freeholder or leaseholder, &c. may have restitution, on conviction of the party of whose dispossession he complains. This restitution may be awarded by the court of quarter sessions, as justices of peace are expressly empowered to grant it; and in this respect they act as judges of record (e), and have greater power than justices of oyer and terminer and gaol delivery, who cannot grant restitution, but can only punish the offender (ƒ), or than justices of assize under 11 G. II. c. 19, s. 17, who on examining the proceeding of justices who have acted on s. 16, by putting an owner into possession of premises deserted, &c., by a tenant, can only order restitution to be made (g).

It seems to have been at one time supposed that greater force was necessary to sustain an indictment for forcible entry at common law than under the statutes (h), but the observations of Lord Kenyon, in R. v. Wilson (i), seem to negative this distinction, and to place both proceedings on their true ground. "I do not know," said he, " that it has ever been decided that it is necessary to allege a greater degree of force in an indictment at common law for a forcible entry than in an indictment on the statutes; therefore an indictment at

(¿) Ten make a "multitude," Co. Lit. 257 a. See R. v. Herne, cited Stra. 195. Mandamus on this act refused, in ex parte Davy, 6 Jur. 949, Wightman, J.

(c) Reg. v. Harland and others, 1 P. & D. 93; S. C. 8 Ad. & E. 826; 2 M. & Rob. 141; R. v. Hake, 4 M. & Ryl. 483, n., but the inquisition must set forth the estate possessed by the party in the property disputed, Reg. v. Bow

(d) Per Lord Kenyon, R. v. Wilson and others, 8 T. R. 360.

(e) See 3 B. & Ad. 688, Littledale, J. (f) Hawk. B. 1. c. 64, s. 61; Bac. Abr. Forcible Entry (F).

(g) See Ashcroft v. Bourne and others, 3 B. & Ad. C84; Reg. v. Traill and another, 12 Ad. & E. 761.

(h) R. v. Blake, 3 Burr. R. 1731. (i) 8 T. R. 357.

common law charging the defendants with having entered unlawfully and with strong hand, is good;" and Le Blanc and Lawrence, Js., added that the words with strong hand means something more than vi et armis, or a common trespass (k). In truth there is no good sense in any distinction as to the degree of force indictable in either way; but in neither case will a mere entry by an open door or window, or with a key, however procured, as by trick and contrivance, suffice (1); nor an entry which the possessor is induced to permit by threats of destroying his cattle or goods (m); but any entry effected by an actual breaking of a dwelling house, or attended by an actual array of force, will be indictable in either form. The true distinction is, that on an indictment at common law the prosecutor needs only to prove a peaceable possession at the time of the ouster; and that there, as he alleges no title, so he can have no restitution: while in an indictment on the statute of Richard, his interest, viz. a seisin in fee, must be alleged; on that of James, the existence of a term or other tenancy; and on these statutes, restitution will be granted. It must be observed, however, that even on these statutes, proof that the prosecutor holds colourably as a freeholder or leaseholder will suffice; and that the court will not, on the trial, enter into the validity of an adverse claim made by the defendant, which he ought to assert, not by force, but by action (n). Since 6 & 7 Vict. c. 85, (p. 532,) the prosecutors though directly interested, seems a competent witness (o).

Regaining Possession to which Party is entitled.]-Hawkins says that at common law a man disseised of lands or tenements, if he could not prevail by fair means, might lawfully regain possession thereof by force, unless put to a necessity of bringing his action by having neglected to re-enter in due time (p). This, however, has been doubted

(k) Viz. the degree of violence amounting to a breach of the public peace, and therefore indictable as forcible entry. See 8 T. R. 361-363.

(1) Com. Dig. Forcible Entry (A); 3 Hawk. B. 1, c. 64, s. 26.

(m) Hawk. B. 1, c. 64, s. 28.

(n) Per Vaughan, B., in R. v. Williams, Monmouth summer assizes, 1828; confirmed on motion for a new trial; and see Jayne v. Price, 5 Taunt. 326; 1 Marsh. 68, S. C.

(0) R. v. Williams, 9 B. & Cr. 549; 4 Man. & Ry. 471.

(p) Pleas of the Crown, Book I. Ch.

LXIV. s. 1; and see reporter's note to R. v. Smyth, 1 Moody & Rob. 159; Hawkins lays down the same law as to retaking goods from a wrongful possessor, and is upheld by Lord Tenterden, in R. v. Milton, M. & M. 107.

At common law the owner may peaceably retake the stolen article wherever he finds it, [without the writ of restriction prescribed by 28 Hen. VIII. c. 11, superseded by 7 & 8 G. IV. c. 29, s. 57, post, after attainder of the felon,] unless the property is changed by some intermediate act, e. g. by the seizure of them by peace officers on suspicion of

by Lord Kenyon (q).

Entering with strong hand to dispossess a tenant by force is a forcible entry, though he holds over after notice to quit expired (r); but the turning out the landlord's cattle on the demised land, or getting possession without force, or eviction of the premises held over, is, under such circumstances, not actionable (s). By 1 & 2 Vict. c. 74 (and 56 G. III. c. 88, for Ireland), when the interest of a tenant at will, or for a term not exceeding seven years, either without liability to rent, or at a rent not exceeding 201. a year, is ended, and the tenant holds over, two justices may give the landlord possession (t).

Indictment for a forcible Entry and Detainer at Common Law. That A. B. late of, &c. C. D. late of, &c. and E. F. late of, &c. together with divers other persons, to the number of six or more, whose names are to the jurors aforesaid as yet unknown, on, &c. with force and arms, and with pistols, staves, and other offensive weapons, &c. into a certain messuage and garden (u) there situate, and then (x) and there being in the peaceable possession of G. H. unlawfully, violently, and injuriously, and with a strong hand (y), did enter; and that the said A. B., C. D., and E. F., together with the said other persons, then and there, with force and arms, and with a strong hand, unlawfully, violently, forcibly, and injuriously did expel, amove, and put out the said G. H. from the possession of the said messuage and garden, and the said G. H. so as aforesaid expelled, amoved, and put out from the possession of the same, then and there, with force and arms, and with a strong hand, unlawfully, violently, forcibly, and injuriously have kept out (z), from the day and year aforesaid until the taking of this inquisition (a), and still do keep out, to the great damage of the said G. H. and against the peace, &c. [See form of indictment for a forcible Entry into a Freehold, under 5 R. II. c. 8.

the felony, or by the lord of the manor, as waifs by the felon on his flight, or by sale in market overt, East's P. C. 789.

So after conviction he may take them again wherever he finds them, or bring trover for them; but to take them back from the offender with intent to favour him, is a misdemeanour, ibid, and see Gilbert's Evid. 222. As to action by buyer against seller for retaking goods sold, see Gillard v. Brittan, 8 M. & W. 575.

(g) R. v. Wilson, 8 T. R. 364; and see 8 Ad. & E. 828.

(r) Taunton v. Costar, 7 T. R. 431; and see 2 Shower, 853; T. R. 294; Turner v. Meymott, 1 Bing. 158; Butcher v. Butcher, 7 B. & Cr. 399; Newton v. Harland, 1 M. & Gr. 644, collecting the cases.

A wife is indictable for forcibly entering a house of which her husband is in possession, though obtained from her by contrivance, R. v. Smyth, 1 M. & Rob. 155; 5 C. & P. 201, S. C.

(s) Taunton v. Costar; Turner v. Meymott. See Coke's Rep. Fraser's ed. Vol. I. 517, note (u), 518, note (y); 6 Taunt. 202; 1 Pri. 53; 16 East, 77; 1 M. & Ryl. 220, 221, (c); 4 B. & Adol. 311; 8 B. & Cr. 4; 6 C. & P. 284, 410.

(t) See Darlington v. Pritchard, 12 L. J. (C. P.) 34; 4 M. & Gr. 783.

(u) The premises must be described with certainty; and therefore an allegation that the defendant entered a tenement will not suffice, 3 Leon. 102; Co. Lit. 6 a.

(x) See 2 Chit. Cr. L. (2nd ed. 220222); 3 Q. B. R. 406; Reg. v. Newlands, 4 Jurist, 322, Littledale, J.

(y) Necessary words, meaning something more than a common trespass, see ante, pp. 376, 378.

(z) The same description and degree of force is necessary to constitute a forcible detainer, as a forcible entry; Dalt. 126; Hawk. B. 1, c. 64, s. 30.

(a) No indictment can warrant an award of restitution, unless it alleges that the wrong-doer both ousted the