The physical force necessary to constitute the offence or wrong, where the entry is required to be forcible, must be greater than the amount used in a mere trespass;1 the entry or detainer must usually be accompanied with some circumstances of actual violence or terror.2 The entry may be said to be forcible not only in respect of the violence actually done to the person of the occupant, as by beating him if he refuse to relinquish his possession, but also in respect to any other violence in the manner of the entry; as by breaking open the doors of a house, whether any person be in it at the time or not, or by breaking an enclosure.3

In respect to the amount or degree of such force necessary to constitute a forcible entry and detainer, while there is a wide difference in the decisions of the different States, the prevailing rule would seem to be, that it must amount to a breach of the peace, or that it would necessarily lead to a breach of the peace, if the person in possession were not overawed, and thus induced to forbear to resist it;1 and this force may be exercised on the land or elsewhere, and it is not necessary that it should have been used in the very act of entry, if it be employed with the immediate intent to enter: neither need the person whose possession is invaded be upon the premises in person, nor need the force be exercised against him personally; if he is in possession by his wife, children, servants, or agents, and the force is applied to them, it is sufficient; but it is no forcible entry for a man to` enter premises of which his wife is in possession;4 and any entry, however made, in order to constitute a forcible entry and detainer, must be in the prosecution of, and based upon, a claim of the lands so entered upon."

entered and kept possession of the premises. They used no violence in word or act to the plaintiff's servant. Held, that there was not such a forcible entry as would support an action on the Gen. Stat. of California, ch. 137. Pike v. Witt, 104 Mass. 595.

1. State v. Ross, 4 Jones (N. Car.), 315; Com. v. Rees, 2 Brewst. (Pa.) 564. See Willard v. Warren, 17 Wend. (N. Y.) 257; Com. v. Shattuck, 4 Cush. (Mass.) 141; State v. Cargill, 2 Brev. (S. Car.)

445.

To constitute a forcible entry and detainer, it is not necessary that violence and outrage upon person or property should be resorted to. If the actual possession of another be taken and held under circumstances which show that it will not be surrendered without a breach of the peace, it is a forcible entry and detainer. Childress v. Black, Yerg. (Tenn.) 317.

Every man having a right of entry into lands may assert the right, providing he commits no such acts of violence as will subject him to criminal prosecution. Langdon v. Potter, 3 Mass.

slaves, constitute the force necessary to maintain the action. But taking peaceable possession, under color of title, would not support the action. Botts v. Armstrong, 8 Port. (Ala.) 57.

Instruction to Jury. In an action of forcible entry and detainer, an instruction to the jury that, if the entry was made in the night, while the plaintiff was in the actual and peaceable possession of the premises, and the defendant took possession with the avowed intention of keeping possession, and actually did keep possession, it is sufficient evidence of force to maintain the action, is erroneous, as not observing the proper distinction between a forcible entry and a forcible detainer, and in omitting to connect the instruction, with a demand made for the possession, which was shown in evidence. Fogarty v. Kelley, 24 Cal. 317.

If the owner of a tenement has gained peaceable possession of a portion thereof, upon the termination of his tenant's estate therein, he may use necessary force to overcome the tenant's resistance to his having possession of the residue. Mugford v. Richardson, 6 Allen (Mass.), 76.

2. 2 Bish. Cr. L. 508.

3. 3 Bac. Ab. Forcible Entry, (b). 4. Morris v. Bowles, 1 Dana (Ky.), 97. 5. Besides such circumstances of violence or terror as are above mentioned, the entry must also be accompanied with a claim of the lands, etc., so entered upon; for it is obvious that if one who pretends a title to lands barely go over them either with or without a number of attendants, armed or unarmed, in his way to the

1. Threats and Intimidation.-An entry or a detainer will be con sidered forcible when it is accompanied by the use of threats, combined numbers or demonstrations, calculated to, and which do inspire alarm or terror in the person evicted or kept out, or which give him just cause to fear that some bodily harm will be done him if he refuses to yield the possession, whether there be any actual force or not, and three persons have been held to be a sufficient combination; but where the act is done by one person, if there is no actual violence, it must consist of actual threatening demonstration, in distinction from this constructive force of combined numbers; and this demonstration, as well as the show of numbers and force, must be such us to overawe and intimidate the occupant and cause the surrender of possession.4 Threats to kill,

church or market, or for such like purpose, without doing any act which, expressly or impliedly, amounts to a claim to such lands, he cannot be said to make an entry therein within the meaning of these statutes, and no one can be in danger of those statutes by entering with force into a tenement whereof he himself had sole and lawful possession, both at and before the time of such entry; as by breaking open the door of his own dwelling house, or of a castle which is his own inheritance, but forcibly detained from him by one who claims the bare custody of it. 2 Bish. Cr. L. § 509.

1. Harrow v. Baker, 2 Greene (Iowa), 201; Commonwealth v. Dudley, 10 Mass. 403; State v. Pollok, 4 Ired. (N. Car.) 305; State v. Cargill, 2 Brev. (S. Car.) 445: Butts v. Voorhees, 13 N. J. L. (1 Green) 13; People v. Fields, I Lans. (N. Y.) 222; State v. Pearson, 2 N. H. 550; Com. v. Shattuck, 4 Cush. (Mass.) 141; Com. v. Rees, 2 Brewst. (Pa.) 564; Rex v. Smith, 5 Car. & P. (Eng.) 235.

2. State v. Pollok, 4 Ired. (N. Car.) 305; State v. Armfield, 5 Ired. (N. Car.)

207.

3. Burt v. State, 3 Brev. (S. Car.) 413; State v. Pollok, 4 Ired. (N. Car.) 305. 4. Strong v. State, 105 Ind. 1; State v. Ross, 4 Jones L. (N. Car.) 315.

The Rule in California. -When a band of armed men enter an enclosure, and begin to build a house, and refuse to yield possession to the person who has been peaceably occupying the premises, and make a show of force, it is forcible entry and detainer. Watson v. Whitney, 23 Cal. 375.

Under 2 Indiana Revised Statutes, p. 462, 12, the plaintiff, to maintain an action of forcible entry or detainer, must prove that he was in possession prior to the entry or detainer, and that the defendant's possession was taken or kept

by such a show of force as reasonably to intimidate the plaintiff. Archey v. Knight, 61 Ind. 311.

Show of Arms without Threats.-Code of Civil Proc., California, 1159. provides that every person is guilty of forcible entry who enters by breaking open doors, windows, etc. Section 1160 provides that a person is guilty of forcible detainer who, by force, or by menaces and threats of violence, unlawfully holds,

etc.

In an action for forcible entry and detainer, defendant had entered, during plaintiff's absence, through a window, and had put plaintiff's things out in the yard. On plaintiff's return defendant stood at the window with a pistol in his hand, and told plaintiff not to come around there, but did not threaten to shoot. Held, that there was force, within the meaning of the statute, although the pistol was not loaded. Bank of California v. Taaffe et al., 18 Pac. Rep. (Cal.) 781.

Moving Line Fence.-D. was in the peaceful possession of a field, and his son was engaged in ploughing oats therein when M. came into the field with five or six men at first, two remaining to the end, who pulled down the dividing fence tween D. and M., and set it up within the field where the oats were sowed, and retained possession of the part so fenced off, the son of D. being alone in the field during all this time. Held, that the conduct of M. evinced a sufficient show of force to entitle D. to the summary remedy of forcible entry and detainer. Minor v. Duncan, 54 Ga. 516.

The Massachusetts Rule.-A mere refusal to deliver possession, when demanded, will not warrant the process for forcible entry and detainer, under the statute of 1784, ch. 8; but the possession must be attended with such circumstances as might excite terror in the owner and

maim, or beat those who resist the attempt to take possession, and any words or acts which plainly imply a purpose of using force against any one who shall make any resistance, is sufficient;1 but it seems that the threats must be of personal injury or damage, and that threats of injury to one's goods, chattels, or personal property are usually held not to be sufficient.

VI. THE POSSESSION NECESSARY.—In order to maintain an action for a forcible entry or a forcible detainer, the complainant must prove that at the time of the ouster complained of he was in the actual and peaceable possession of the demanded premises. A constructive

and scrambling possession is not sufficient.

(N. Y.) 222; People v. Carter, 29 Barb. (N. Y.) 208; People v. Van Nostrand, 9 Wend. (N. Y.) 50; Commonwealth v. Keeper of the Prison, 1 Ashm. (Pa.) 140; Commonwealth v. Conway, I Brewst. (Pa.) 509; Pennsylvania v. Leach, Add. (Pa.) 352; Pennsylvania v. Waddle. Add. (Pa.) 41; Pennsylvania v. Robinson, Add. (Pa.) 14; Rust v. State, 2 Brev. (S. Car.) 413; Jarvis v. Hamilton, 16 Wis. 594.

Widow's Possession in Behalf of Heirs.Where the widow has the right of possession in behalf of the heirs, she can bring summary proceedings without waiting for the assignment of her dower to her. Moody v. Seaman, 46 Mich. 74.

Tennessee Doctrine.-A party to be guilty of forcible entry and detainer under the act of 1821 must enter into possession of the premises when actually adversely holden. Lane v. Marshall, Mart. & Y. (Tenn.) 255.

Must be Actual, not Constructive.-Every unlawful entry upon the possession of another is, in law, a forcible entry; but such possession must be actual, not constructive. Two persons cannot be in possession of the same land at the same time; and wherever the unlawful entry of one dispossesses the other, an indictment for forcible entry may be main tained. Burt v. State, 3 Brev. (S. Car.) 413.

There must be actual seizin in order to maintain trespass, and also to prosecute a writ of right, or a writ for forcible entry and detainer. Neely v. Butler, 10 B. Mon. (Ky.) 48.

Possession nomine proprio is of the essence of the possessory action in Louisiana. Dooley v. Gibson, 32 La. Ann. 192.

The Mississippi Rule.-Under proceedings for a forcible entry and detainer, the plaintiff may show his right of possession, though he has never had actual possession of the premises. Spears v. M'Kay, I Miss. (Walk) 265.

A tortious possession of land may be come lawful by agreement of the parties, express or implied; and in that case unlawful detainer will lie to recover the possession, upon demand in writing, after the termination of such lawful possessory interest. Bates v. Ridgeway, 48 Ala. 611.

In Illinois, the action of forcible entry and detainer has been changed to a civil proceeding, and no express time of limitation has been prescribed, and the plaintiff to recover must show that he had

The question in

at the time of the alleged entry the actual possession of the premises described. A mere constructive possession, such as the fee-simple title thereto, is not sufficient, as the question of title is not in any sense involved. Thompson v. Sornberger, 59 Ill. 326.

The statute of forcible entry and detainer is a derogation of the common law, and to be strictly construed. The action can only be maintained by one actually, peaceably, and exclusively in possession. House v. Keiser, 8 Cal. 499.

1. Voll v. Butler, 49 Cal. 74.

As between two parties struggling for the possession, neither can maintain an action of forcible entry and detainer against the other until he has acquired an actual possession, which has ripened into a peaceable occupation. Voll v. Butler, 49 Cal. 74.

What is a Scrambling Possession.-In order to maintain an action for forcible entry and detainer, actual and peaceable possession by the plaintiff at the time of the entry complained of, although contested in the courts, is sufficient. This is not a "scrambling possession," that being a struggle for possession on the land itself. Spiers v. Duane, 54 Cal. 176.

In order to maintain an action for forcible entry or forcible detainer, it was incumbent on the plaintiffs to prove that at the time of the ouster complained of they were in the actual and peaceable possession of the demanded premises, as contradistinguished from a constructive and scrambling possession, and that the defendants either made a forcible entry, or forcibly detained the premises from them Conroy v. Duane, 45 Cal. 597.

While a scrambling possession is not to be encouraged, yet the one of two claimants of title who first obtains actual possession is entitled to protection in that possession until his title is adjudged void. Coonradt v. Campbell, 25 Kan.

227.

A, claiming title to premises under a deed from B, who was in possession and denied A's right, and refused to give him possession, succeeded, in attempting to gain possession, in crossing the threshold of the house without actual resistance, but was then resisted and made no further progress, B continuing his possession uninterrupted. Held, that A never had such possession as entitled him to maintain an action on Mass. Gen. St. ch. 137. for forcible entry and detain Williams v. McGaffigan, 132 Mass.

er.

122.