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FORBEARANCE AS A CONSIDERATION.-See BILLS AND NOTES, Vol. II. 361; CONTRACTS, Vol. III. 86.

FORCE.-See note 1.

press agreement to that effect; and it is to be observed that the term forbearance, could it enlarge the operation of this statute, is not to be found in it, and is not omitted in any other on the same subject, yet I consider forbearance, when stipulated for, tantamount to a loan." Henry and Winston v. Thompson, 1 Minor (Ala.), 209, 232.

1. Physical force, however slight, against the person or possession of another, is, in itself and essentially, without regard to the motive, unlawful, and is the gist or gravamen of the action of trespass vi et armis. Smith v. Rutherford, 2 S. & R. (Pa.) 358; Am. Notes to Scott & Shephard, 1 Am. Ldg. Cas. (8th Am. Ed) 883. Force, in this connection, is not merely actual force, but also implied force; and the law implies force wherever the injury is immediate to the person or property of another. Jordan v. Wyatt, Gratt. (Va.) 157. See TRES

PASS.

Force is also an element of importance in criminal law, for all intentional injuries by physical force, to person or property, are indictable. Bishop's Crim. L. 556. 574. But where force is a necessary element of crime-as robbery or rape-it must not be physical; it may be mental, occasioned by threats or the like. 2 Whart. Cr. L. 1698.

Where, under statute, force is a necessary incident of rape, an averment of violence will include it. Gutierrez v. State, 44 Tex. 587; State v. Johnson, 67 N. Car. 55; Comm. v. Fogarty, 8 Gray (Miss.), 489; contra, State v. Blake, 39 Me. 322. And in burglary, breaking includes force. Under a statutory provision requiring a forcible breaking, proof of constructive breaking at common law is sufficient.

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Ducher v. State, 18 Ohio, 308. An averment in an indictment for manslaughter that the prisoner did compel and force" A and B, who were working a windlass, to leave it, whereby the deceased was killed, is not proved by evidence that the prisoner was working with A and B, and on leaving off they were not strong enough to work the windlass and had to let it go. "Compel and force" must be taken in this case to mean active force. Rex v. Lloyd, I C. &. P. 301. But under a statute forbidding the forcible passing of a toll-gate

without paying toll, it is sufficient to establish the offence to prove a passing, after refusal of permission to pass without payment, without the consent and against the will of the gate-keeper. It is not necessary that resistance by force should have been made or violence offered. Turnpike Co. v. Fowler, 24 N. J. 205. Likewise, under an indictment for forcibly confining and detaining negroes on board a vessel with intent to make them slaves, it is not necessary to prove physical force. "This word, forcibly,' which is the material element in the crime charged, does not mean physical or manual force. Even the crime of rob. bery, in which force is a peculiar element of the crime, it being the taking violently the property of another from his person, need not be accompanied with, or consist of, actual force. Any conduct, on the part of the robber, putting the person deprived of his goods in bodily fear and terror, is equivalent to actual force. And so in this case. These negroes were collected at the place, where they were put on board, in barracoons, and were there under restraint by the person who furnished them at the ship's side. They were in bondage at the time, and under the control of those persons, who transferred them to the vessel. They came upon the deck of the vessel in that condition; and it would be strange indeed if it was made necessary by the law that it should be shown that they made personal, physical resistance at the time against being put on board and detained on board, under all these circumstances. It is sufficient that they were under moral restraint and fear-their wills controlled by this superior power exercised over their minds and bodies." United States v. Gordon, 5 Blatchf. (C. C.) 18.

Force and arms.-By the ancient common law, the use of the words with force

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and arms was necessary in indictments for crimes of a forcible nature. cessity was abolished by statute 37 Hen. VIII. c. 8; but they are still used, even in indictments where the ancient common law did not require them. 2 Bishop's Crim. Pr. 648; Bishop's Direc. & F. 43; Chitty's Cr. L. 240 sq.; I Whar. Cr. L. (17th Ed.) 403. The statute 37 Hen. VIII. c. 8 is in force in most of the States, having been either re-enacted or regard

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ed as a part of their common law. port of the Judges, 3 Bin. (Pa.) 595, 620; Rob. Dig. Brit. Stats. in force in Pa., 324; Comm. v. Scannel, 11 Cush. (Mass.) 547; State v. Duncan, 6 Ired. (N. Car.) 236; Taylor v. State, 6 Humph. (Tenn.). 285; Rice 2. State, 3 Heisk. (Tenn.) 215; State v. Elliott, 7 Blackf. (Ind.) 280; State v. Temple, 3 Fairf. (Me.) 214; State v. Hanley, 47 Vt. 290. In the last case other words implying force had been used. There is no American case in which the use of these words in an indictment is held necessary. Bishop's Direc. & F. 43.

Forced Sale (see EXECUTION; EXEMPTION; HOMESTEAD). In many of the States there are constitutional and statu

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tory provisions exempting homesteads from forced sale or alienation. Different views have been taken of the meaning of these expressions. "A forced sale,' it was said in Defour v. Camfranc, II Mart. (La.) 610, results from a sale made at the time and in the manner prescribed by law, in virtue of an execution issuing on a judgment already rendered by a court of competent jurisdiction." This definition was adopted in Howard v. North, Tex. 304; Sampson v. Williamson, 6 Tex. 102; Milton v. State (Tex.), 6 S. W. Rep. 303. Α 'forced sale" must be made by an order or decree of a court. Wing . Cropper, 35 Ill. 256.

And see La. Civ. Code, 2602.

On the other hand, a 'forced sale " was held not to be synonymous with "sale on execution' in Peterson 7. Hornblower, 33 Cal. 266. "The latter may be and often is voluntary in every respect. When the owner consents to a sale under execution or other legal process, the sale is not forced, but it is as voluntary, within the full import of the term, as it is when he directly effects the sale and executes the convyeance. Its quality as being voluntary or forced depends, not upon the mode of its execution, but upon the presence or absence of the consent of the owner." This was cited with approval in Patterson v. Taylor, 15 Fla. 336, in which it was held that a sale to which a mortgagee had ex

pressly given his consent in the mortgage deed was not a forced sale. Nor is a sale under a deed of trust. Moran v. Clark (W. Va.). 4 S. E. Rep. 303.

A constitutional exemption of the kind here treated extends to any compulsory disposition of the homestead, whether denominated a sale or otherwise. A forced dispossession by ejectment by a mortgagee is as much within the prohibition as a forced sale under judicial process. Lanahan v. Sears, 102 U. S. 318. The constitution obviously intended that the homestead should be exempted from the operation of any species of execution, or from any forced disposition of the property, whether partial or total, which would disturb the family in the quiet and uninterrupted possession of their home, with the property thereto attached. The beneficence of the provision has a much wider range than to protect the family from a sale which would utterly extinguish all right in the property. It shields them also from any extents or deliveries of the property, or from any forcible appropriation of its rents, issues, and profits. It protects the domestic sanctuary from every species of intrusion which, under color of law, would subject the property, by any disposition whatever, to the payment of debts." Hemphill, C.J., in Sampson v. Williamson, 66 Tex. 102.

Forced Heirs. By the Civ. Code of La., Donationes inter vivos or mortis causa cannot exceed two thirds of the donor's property if he have a child or a parent, one half if he have two children, and one third if he have three or more. In these cases the heirs are called 'forced heirs,' because the donor cannot deprive them of the portion of his estate reserved for them by law except in cases where he has a just cause to disinherit them." Art. 1495.

By force (see By).-" By reason of," in consequence of." Fischer v. Hope M. L. I. Co. of N. Y., 8 Jones & S. (N. Y.) 291.

With force is equivalent to "forcibly" in an indictment. United States v. Bachelder, 2 Gall. (C. C.) 15.

100

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3. Color of Title, 126.

4. Pre-emption, 126.

VII. Title, How Far Considered, 126. VIII. Who may Bring the Action, 129. IX. Against Whom the Action may be Brought, 137.

X. Notice to Quit, and Demand for
Possession, 139.

1. Time and Manner of Service of
Notice. 142.

XI. Procedure, 143.

1. Jurisdiction, 143.

2. Commencement of the Action, 146.
a. The Summons or Warrant, 146.
b. Service of Process, 146.

c. The Inquisition, 147.
d. Indictment, 148.

3. Venue, 150.

4. The Complaint, 150.

a. Complainant's Estate and Pos

session, 151.

b. Allegations of the Entry and De

tainer, 152.

c. The Description of the Property,

153.

d. Allegations in Cases of Landlord and Tenant, 155.

e. Form and Verification, 157. 5. Answers and Defences, 157. a. Statute of Limitations, 157. b. Pleas in Abatement, 158. c. Defences in General, 159. 6. The Disposition of the Issues, 163.

7. Amendments, 164.

8. Abatement of the Action, 165. 9. Evidence, 165.

a. What must be Proved and Bur den of Proof, 165.

b. Admissibility and Materiality,

166.

c Competency of Witnesses and Sufficiency of Evidence, 169. d. Objections to the Admission of Evidence, 170.

10. Verdict, 170.

11. Damages, 172.

a. Right to the Recovery of, 172. b. Elements of, 172.

c. Double and Treble Damages,

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I. DEFINITION.—A forcible entry and detainer is a violent taking and keeping possession, by one, of any lands and tenements occupied by another, by means of threats, force or arms, and without authority of law.1

1. Bouv. Dict. 598; State v. Gilbert, 2 Bay (S. C.), 355; State v. Cargill, 2 Brev. (S. C.) 445; People v. Field, 52 Barb. (N. Y.) 198; People v. Fields, t Gans. (N. Y.) 222; Com. v. Shattuck, 4 Cush. (Mass.) 141; Henderson's Case, 8

Gratt. (Va.) 708; State v. Pridgen, 8 Ired. (N. Car.) 84; Com. v. Dudley, 10 Mass. 403; State v. Wilson, 3 Nev. 125. See 4 Black. Com. 148; 1 Russ. on Cr. (9th Ed.) 421.

II. NATURE OF THE ACTION.-Forcible entry and detainer is essentially an action given to protect the actual possession of real estate against unlawful and forcible invasion, to remove occasion for acts of violence in defending such possession, and to punish breaches of the peace committed in the entry upon or the detainer of real property. The main object, therefore, being to preserve the public peace, and prevent parties from asserting their rights, real or supposed, by force and violence, the action will lie irrespective of the question as to whether the defendant had the legal right of possession, or a right of entry, the gist of the action being the entry and detainer by force and violence, and the ousting from a peaceable possession, contrary to law.3

1. Dotson v. State, 6 Coldw. (Tenn.) 545.

Remedy Applicable to Real Property Only. The process of forcible entry and detainer cannot be maintained for a building standing on the land of another by his consent, it being merely personal property.

Field v. Higgins, 35 Me. 339. See also Kassing v. Keohane, 4 Ill. App. 460. 2. Greeley v. Spratt, 19 Fla. 644.

Tenant Cannot be Ejected by Force.The statute of forcible entry and detainer takes away the owner's common-law right forcibly to enter upon his tenant's holding over after the determination of his term. Reeder v. Purdy, 41 Ill. 279.

Under Ind. Rev. St. 1881, § 5237, providing that any person "having right to possession" of premises who is ousted may maintain an action for restitution, held, that a person in actual peaceable possession was entitled to maintain such action when ousted, though by the real owner. Judy v. Citizen, 101 Ind. 18.

The party in peaceable possession cannot be legally ejected by force. The question of right does not at all arise in the action of forcible entry and detainer, and the defendants cannot set up their right as a defence for their forcible entry. Beeler v. Cardwell, 33 Mo. 84.

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The Missouri Act of 1845, p. 12, that "any person" who "shall enter upon any lands with force or strong hand shall be deemed guilty of a forcible entry." construed to include the owner. Emerson v. Sturgeon, 59 Mo. 404.

The action under Mont. Ter. Cod. St. 163, ch. 3, § 636, for forcible entry and unlawful detainer, does not supersede that of ejectment. The defendant cannot disprove the plaintiff's title. Boardman v. Thompson, 3 Mont. 387.

Question Submitted to Jury.—In an action of forcible entry and detainer the issue to be submitted to the jury is whether the plaintiff was lawfully, that is, peace

ably, in possession of the premises sought to be recovered and the defendant unlawfully entered; the right of entry or of possession is not involved in the issue. Beeler v. Cardwell. 29 Mo. 72.

3. In a suit for forcible entry and detainer, the force is the subject of inquiry, and evidence to prove the right of possession is inadmissible. Beauchamp v. Morris, 4 Bibb (Ky.), 312; Smith v. Dedman, 4 Bibb (Ky.), 192; Cammack v. Macy, 3 A. K. Marsh. (Ky.) 296.

Where a person claiming only an incorporeal right in land is dispossessed by a person having title and right of entry, he has no remedy by action at common law, but must resort to the statutory action of forcible entry and detainer. Fuhr v. Dean, 26 Mo. 116.

Landlord and Tenant.-An indictment for forcible entry may be sustained against a landlord for forcibly ejecting a sub-tenant, after the termination of the tenancy and the removal of the principal tenant. The use of force and violence is an offence of itself, for which he who uses it may be indicted and punished, whatever may be the legal rights of the parties. The lawfulness of the entry in no way excuses the violence used to obtain the possession: this is an offence against the public, for which an indictment will lie. Commonwealth v. Kensey, 2 Pars. (Pa.) Sel. Cas. 401.

Entry in Ejectment.-A prevailing plaintiff in ejectment is guilty of forcible entry, if he enter without the aid of the process of the court. Davis v. Lee, 2 B. Mon. (Ky.) 300.

A Trespasser may maintain an action of forcible entry. Lorimier v. Lewis, I Morr. (Iowa) 253.

In Alabama, to sustain an action for forcible entry and detainer, the plaintiff must show that defendant has forcibly entered his premises, and that he actually detains the possession, either by himself

1. Distinction between Forcible Entry and Forcible Detainer.-Forcible entry and forcible detainer are in substance and in principle but one offence, and are treated of in the books together as forcible entry and detainer;1 but they are distinct and different acts;

in person, or by another, to whom, after obtaining it by force, he has delivered it to be kept for him; and the fact that the person for whom he gives the possession has been his tenant before the premises went into the possession of the plaintiff makes no difference. McGonegal v. Walker, 23 Ala 361.

The Arkansas Doctrine.-Forcible entry and detainer is a tort, pure and simple. Force is the gist of the action. The remedy is designed to protect the actual possession, whether rightful or wrongful. It must accordingly be shown that the defendant entered without the consent of the person in actual possession, and that the entry or subsequent holding of possession was with force and strong hand.

Constructive Possession, or evidence that the plaintiff is entitled to possession, or a scrambling possession, as in Anderson v. Mills, 40 Ark. 192, is not sufficient; and a peaceable entry, though unlawful, is not sufficient. Nor does a refusal to give possession, unless put out by law, constitute unlawful detainer. Johnson v. West, 41 Ark. 535.

The Act of March 2, 1875, is a re-enactment of chapter 72, title Forcible Entry and Detainer," of Gould's Digest, and the action of forcible entry and detainer can be maintained only in a case of a forcible entry, or a turning out by force, or where the plaintiff has parted with the possession under some contract or agreement, express or implied, that the possession shall be restored to him. It is not intended to take the place of the action of ejectment, but to restore possession forcibly or unlawfully detained, without regard to the ownership or title to the property. Force is the gist of the action, and must be actual and hostile. Implied force, as where the entry is peaceable, but unlawful, is not sufficient. Hall v. Trucks, 38 Ark. 257.

In forcible entry and detainer, force is the gist of the action. Unlawful detainer is founded on a breach of contract. The court is inclined to the opinion that forcible entry and detainer and unlawful detainer cannot be joined, and that it is good case of demurrer, where it appears, on the face of the declaration, that the premises sought to be recovered are one and the same. McGuire v. Cook, 13 Ark. 448.

In Florida, where the plaintiff had peaceably occupied the premises for several

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weeks, and was dispossessed by force without process of law by defendant, it is not material, in a proceeding for forcible entry and detainer, whether the plaintiff was originally a trespasser, or that defendant may have had a legal right of possession. The gist of the proceeding under the statute is the forcible entry, and ousting plaintiff from a peaceable possession, contrary to law. Greeley v. Spratt, 19 Fla. 644.

In Illinois, where a party's land is in the actual possession of another, even though unlawfully, he has no right forci bly to repossess himself, but must resort to the action of forcible entry and detainer, or the action of ejectment. Allen v. Tobias, 77 Ill. 169.

One in peaceable possession, if forcibly expelled from the premises, may maintain forcible entry. Baker v. Hays, 28 Ill. 387.

The Missouri Doctrine.-The law forbids a forcible entry with or without title, and it is immaterial whether the intruder is a mere trespasser or enters under a paramount title, for if he has the right to the possession he must resort to the authority of the law to obtain it. Dilworth v. Fee, 52 Mo. 130.

In forcible entry and detainer the status quo is to be restored without regard to the question of who has otherwise the better claim to the possession. Hyde v. Fraher, 25 Mo. App. 414.

In Ohio the remedy of forcible entry and detainer extends to all cases of entry or maintenance of possession by actual force, and is not limited to the cases enumerated in the 19th section of the statute regulating proceedings in forcible entry and detainer. Yager v. Wilber, 8 Ohio, 399.

In West Virginia, if the defendant has entered unlawfully, the plaintiff is entitled to recover without any regard to the question of his right of possession; and this though the land from which he is ousted is the land of the party who ousted him. Moore v. Douglass, 14 W. Va. 708. 1. 2 Bish. Cr. L. § 489.

In California and Nevada the gist of the action for "forcible entry and unlawful detainer" is the forcible entry; the detainer is consequential and not independent ground of relief. (McMinn v. Bliss, 31 Cal. 122) Peacock v. Leonard, 8 Nev. 84.

2. A forcible entry and a forcible detainer are distinct offences, although they

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