the former being consummated upon the forcibly taking possession, while the latter consists of the use of force in detaining the possession of property upon which a wrongful entry has been made.

2. The Different Remedies. In the United States, as well as in England, the remedy for a forcible entry and detainer is twofold: by indictment at common law, and by proceedings under the several statutes relating to forcible entry and detainer. The common-law remedy is purely criminal in its nature, but the action under the statutes is a civil remedy, the sole object of which is to regain a possession which has been invaded; and the only judgment that can be rendered is, that the plaintiff have restitution. of the premises of which he has been unlawfully deprived. The

may be charged in the same indictment. The former was an offence at common law, and the latter is punishable only by statute. Commonwealth v. Toram, 2 Pars. (Pa.) Sel. Cas. 411.

1. 2 Whart. Cr. L. § 1083; Dickinson v. Maguire, 9 Cal. 46.

In Indiana the word "or" in the first line of section 12, 2 Rev. Stat. 1852, 492, is equivalent to "and"; and the remedy applies where there has been an unlawful and forcible entry, or an unlawful and forcible detainer after a peaceable entry. O'Connell v. Gillespie, 17 Ind. 459.

Original Entry Unlawful-Missouri Doctrine. An action for forcible entry and detainer cannot be sustained by proof of an unlawful detention only; but, unless the original entry was also unlawful, it will be necessary to prove further a demand of possession in writing, and a refusal by the defendant. Drehman v. Stifel, 41 Mo. 184.

The words "unlawful or forcible" in the second section of the Wisconsin act to prevent forcible entries and detainers refer to one and the same class of cases. Ferrell v. Lamar, 1 Wis. 8.

2. Commonwealth v. Shattuck, 4 Cush. (Mass.) 141.

An indictment will lie at common law for forcible entry and detainer. State . Jones, 14 S. Car. 344: Cruiser v. State, 18 N. J. L. (3 Harr.) 206; Henderson's Case, 8 Gratt. (Va.) 708; State v. Wilson, 3 Mo. 125; Com. v. Shattuck, 4 Cush. (Mass.) 141. And in New Jersey the right was not taken away by the statute of 1798. Cruiser v. State, 18 N. J. L. (3 Harr.) 206.

The Common Law -It was the doctrine of the common law of England from the time of the Norman Conqueror until the statute of 5 Rich. II. ch. 8. Of Forcible Entry and Detainer"—a period of nearly three hundred years,-that a man had a right of entry, he was permitted to enter

with force and arms; and to retain his entry by force where his entry was lawful. But this indulgence of the common law (permitting forcible entries into lands withheld from the rightful proprietors) having been found by experience to be very prejudicial to the public peace, by giving an opportunity to powerful men, under the pretence of feigned titles, forcibly to eject their weaker neighbors, it was thought necessary, by severe laws, to restrain all persons from the use of such violent methods of doing themselves justice; and to this end the statute above referred to was enacted by the English Parliament. This statute was followed by others of the like import in England, and similar statutes on the subject have been enacted in many of the States of the American Union. 3 Wait Actions and

Def. 395.

In Maine the statute 5 Rich. II. ch. 7. respecting entry manu forte, is part of the common law. Harding's Case, 1 Me. (1 Greenl.) 22.

In South Carolina the statutes 5 Rich. II. ch. 8; 8 Hen. VI. ch. 9, and 3i Eliz. ch. II, relating to forcible entries and detainers, are all of force, by virtue of 2 of the Act of 1712, for putting certain English statutes in force. State v. Speirin, I Brev. (S. Car.) 119.

But in New Hampshire the repeal by the Rev. Stat. of 1791, regulating proceedings in forcible entry, etc., repealed the English law thereon so far as it had been adopted in that State. State v. Morgan, 59 N. H. 322.

3. Robinson v. Crummer, 10 Ill. (5 Gilm.) 218.

"The common law affords no civil remedy against a person who, having a right, enters forcibly; but the injured party must appeal to the statutory action of forcible entry and detainer." Fuhr v. Dcan, 26 Mo. 116; s. c.. 69 Am. Dec. 484; Tucker v. Phillips, 2 Metc. (Ky.) 416.

civil and the criminal remedy cannot be pursued in the same proceeding; a writ of restitution cannot generally be awarded on conviction in a criminal case.1 In many of the States the criminal remedy has, to a large extent, fallen into disuse and been superseded by the civil one; the remedy having become by gradual additions, in effect, a private as well as a public one.3

3. The Remedy made Applicable to Tenants Holding Over.In some of the States the remedy of forcible entry and detainer has been enlarged by statute and given to landlords, vendees, mortgagees, trustees, and other persons against whom the possession of lands is withheld by a tenant, vendor, grantor, mortgagor, or other person after the right to hold possession has expired or been disposed of.4 The remedy thus enlarged and extended is founded upon contract, express or implied by law; and it has

1. State v. Walker, 5 Sneed (Tenn.), real estate gives no remedy against per259. sons holding over. Murdock v. Miller, 21 Ga. 368.

2. 2 Whart. Cr. L. § 1083.

Statutory Change.-An information qui tam will lie under the Connecticut statute previous to the revision of 1821, for forcible entry and detainer. Dutton v. Tracy, 4 Conn. 79.

In Illinois, the action of forcible entry and detainer has been changed to a civil proceeding. Thompson v. Sornberger, 59 Ill. 326.

The proceedings authorized by Mo. Laws 1870, $65, are criminal in their nature, and must be conducted in the name of the State. Gilmore v. Dawson, 64 Mo. 310.

In New York, although the statute of forcible entry and detainer renders the forcible entry of a person having right indictable, yet it does not extend so far as to authorize an action of trespass against him. Hyat v. Wood, 4 Johns. (N. Y.) 150.

3. See Wood v. Phillips, 43 N. Y. 152; Small v. Gwinn, 6 Cal. 447; Bowers v. Cherokee Bob, 45 Cal. 495.

4. Ragan v. Harrell, 52 Miss. 818. The Arkansas Doctrine.-Unlawful detainer is a statutory remedy for the benefit of landlords against tenants who hold over after the expiration of their term. It is founded on breach of contract implied by law, if not expressed, and may be maintained either by the lessor, his heir or assignee to whom the land passes. Johnson v. West, 41 Ark. 535.

The action of unlawful detainer rests on contract, express or implied, between the parties; r.e., on the relation of landlord and tenant. Miller v. Turney, 13 Ark. 385.

It was held in Georgia, that a statute providing a remedy against intruders on

The Massachusetts Doctrine.-Forcible entry under the statute lies where the parties are not landlord and tenant, but where one peaceably enters and detains without right against the owner who has a constructive possession. McKissack v. Bullington, 37 Miss. 535.

The Missouri Statute (Rev. Code 1835, 278) giving the action for a forcible detainer contemplates a case where the plaintiff has been in lawful possession, and in which the defendant, or those under whom he claims, having peaceably obtained possession, held over after a demand made in writing. Blount v. Winright, 7 Mo. 50. chaser at a sheriff's sale maintain an action against the defendant in execution. Hatfield v. Wallace, 7 Mo. 112.

Nor can a pur

The remedy given by Wis. Rev. Stat. ch. 151, extends only to cases where the tenant, at and before the time of demand made in writing that he deliver possession, is holding over after the determination of the lease, or contrary to its conditions and covenants, or after rent has become due according to its ters, and remained unpaid for three days, i.e., where he is a wrongdoer at the time of such demand made. Ela v. Bankes, 32 Wis. 635.

Determining Character of Tenancy.Where no time is mentioned and no annual rent reserved in a letting, the character of the tenure as to time will be controlled by the intervals between the payments; monthly or weekly payments implying monthly or weekly tenancies. Steffens v. Earl, 40 N. J. L. 128.

5. Johnson v. West. 41 Ark. 535; Miller v. Turney, 13 Ark. 383; Smith v. Laffery, 27 Ark. 46.

been held that such a cause of action, being founded upon a breach of contract, cannot be joined with a cause of action for forcible entry and detainer under the original statutes, the latter sounding in tort.1

.2

4. When the Remedy does Not Apply.-The remedy is not applicable in a case of peaceful entry by one under color of title in himself, or as tenant of some person other than the plaintiff or his assignor, and who obtains and maintains his possession peaceably and the action involves no exercise of equitable jurisdiction;3 nor can it be maintained for a mere trespass on land;1 nor where the entry was made under due process of law; nor where the detainer is forcible after such entry under process of law.6

III. WHAT CONSTITUTES A FORCIBLE ENTRY.-Forcible entry is defined to be the offence or wrong of taking possession, by exercise of strength or compulsory power, of lands or tenements against the will of the person entitled to the possession, and without authority of law. The two wrongs of forcible entry and forcible detainer are distinguishable in nature, but, being usually combined, are commonly connected under one name-forcible entry and detainer. The degree of force, or the particular wrongful acts necessary to support the action, are usually defined by the statutes. giving and regulating the remedy. But in all cases, unless there 183. See also Rouse v. Dean, 9 Mo. 301.

1. Smith v. Laffery, 27 Ark. 46. Where an action of forcible entry and detainer is brought before a justice of the peace under Comp. Laws Kan. 1865, art. 13, ch. 81, and there is joined therewith a claim for damages growing out of the same transaction, held, that the proceeding is a summary one, and cannot be joined with other causes of action, although arising out of the same transaction. Ow v. Wickham (Kan.), 16 Pac. Rep. 335.

2. Winterfield v. Stauss, 24 Wis. 394; Ferrell v. Lamar, I Wis. 8; People v. Fields, I Lans. (N. Y.) 222; McHan v. Stansell, 39 Ga. 197; Farmer v. Hunter, 45 Mich. 337.

3. Kellogg v. Lewis, 28 Kan. 535. 4. Castro v. Tewksbury, 69 Cal. 562. A simple trespass upon premises, without menaces or any circumstance of force or terror in respect of the person, is not sufficient to constitute a forcible entry and detainer. People v. Smith, 24 Barb. (N. Y.) 16; Merrill v. Forbes, 23 Cal. 379; Greer v. Wroe, I Sneed (Tenn.), 246; Foster v. Kelsey, 36 Vt. 199.

A wrongful entry on land, and the cutting and carrying away of timber where the poseession of the land is not divested, does not render the wrong-doer liable for forcible entry and detainer. Grughler. Wheeler, 12 B. Mon. (Ky.)

5. An action of forcible entry and detainer cannot be sustained where it appears that the defendant was placed in possession of the premises by a sheriff, by virtue of a writ of possession, and the entry was peacefully acquiesced in by the plaintiff, from whom the possession was taken. Wyatt v. Monroe, 27 Tex. 268.

Forcible entry does not lie against a sheriff who, in levying an attachment, assumes control of premises for twenty hours or so. Link v. Harrington, 23 Mo. App. 429. But see White v. Sheriff, 32 La. An. 130.

6. Vess v. State. 93 Ind. 211.
7. Abbott's L. Dict.

Forcible entry and detainer was a public offence in England, made so by statute. 4 Bl. Com. 148; 1 Russ. on Cr. (9th Am. Ed.) 421. In this, as in many other States of the Union, it is a tort, to be redressed by a civil action, which the statute gives. It is an action summary in its form and machinery, to gain possession of realty which has been tortiously taken, or is tortiously withheld. It is purely possessory, and cannot be maintained unless the plaintiff has had prior possession. Title cannot be inquired into. Weldon v. Schlosser, 74 Ala. 355. The action of forcible entry and detainer

is some use of force or of threats and intimidation, there is no forcible entry. It is not, however, necessary that the force or violence should be used against the person of the occupant; forcibly breaking into a house in the absence of the occupant, intimidat

ing him by the use of threats or menace,1 and generally any circumstances either of actual violence or reasonably exciting fear of such violence, either to person or to property, will be sufficient.