and if any person shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as aforesaid, but which shall be private property, or in which there shall be any private right of fishery, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money not exceeding five pounds as to the justice shall seem meet: provided always, that nothing hereinbefore contained shall extend to any person angling in the day time; but if any person shall by angling in the day time unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any such water as first mentioned, he shall, on conviction before a justice of the peace, forfeit and pay any sum not exceeding five pounds; and if in any such water as last mentioned, he shall on the like conviction forfeit and pay any sum not exceeding two pounds as to the justice shall seem meet; and if the boundary of any parish, township, or vill shall happen to be in or by the side of any such water as is hereinbefore mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto."

Indictment on the first Clause of s. 34 of 7 & 8 G. IV. c. 29, for taking Fish in Water adjoining or belonging to a Dwelling-house. That A. B. late of, &c. at, &c. in a certain stream of water there situate, then and there running through and being in certain land, to wit, a pleasure-ground of one C. D. wherein the said C. D. then had a right of fishery there, five fish called eels, of the value of five shillings, then and there being found in the said stream in the said close of the said C. D. then and there adjoining (j) and belonging to the dwelling-house of the said C. D., unlawfully and wilfully did take; against the form of the statute in such case made and provided, and against the peace, &c.

Conviction on second clause of the section, see post, Ch. XII. s. 3.

Breaking Dam of Fish or Mill Pond, or putting Lime or noxious Material in Water.]-By 7 & 8 G. IV. c. 30, s. 15, if any person shall unlawfully and maliciously break down or otherwise destroy the dam 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

(j) Absolute contiguity seems here meant; and ground separated from a house by a narrow walk and paling, wall or gate, was held not within the meaning

of similar words in sect. 38 of this act against robbing gardens, R. v. Hodges,. M. & M. 341.

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 (k); 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 (1).

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 (m).

That A. B., late of, &c. at, &c. unlawfully and maliciously did put a large quan. tity, 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 XIV.

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, 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, or a church, though no one be therein, with such actual

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

(1) See Archb. Cr. Pl. & Ev. 287, 6th ed. (m) Id. ibid.

violence as amounts to an unlawful act, or public breach of the peace (n), 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 (o). 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 (p)" 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 dwelling house." 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. II. 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 (q) 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

(n) See per Le Blanc, J., 8 T. R. 363, and per Lord Kenyon, id. 364; R. v. Wilson and others.

(0) See judgment of the court in R. v. Wilson and others, 8T. R.361; R. v. John Wilson, 3 Ad. & Ell. 817; S. C. 5 N. & M. 164. Com. Dig. tit. Forcible Entry, (A 1, 2, B 1.) an entry, though by one person only, will be forcible, if either by act or threat at the time of his entry he gives the party in possession just cause to fear bodily hurt if he does not give way; and the same circumstances of

violence or terror which make an entry forcible, make a detainer forcible also. A detainer may be forcible whether the entry were so or not, Hawk. B. 1, c. 64, Com. Dig. tit. Forcible Entry, if such entry was unlawful, R. v. Oakley, 4 B. & Ad. 307; 1 Nev. & Man. 58.

(p) Hawk. B. 1, c. 64, s. 26. The writer is discussing the remedy on the statutes.

(q) Ten make a "multitude," Co. Lit. 257 a. See R. v. Herne, cited Stra. 195.

a jury summoned by them (r). 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 (s). 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 have greater power than justices of oyer and terminer and gaol delivery, who cannot grant restitution, but can only punish the offender (t).

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 (u), but the observations of Lord Kenyon, in R. v. Wilson (v), 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 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 mean something more than vi et armis, or a common trespass (w). 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 (x); nor an entry which the possessor is induced to permit by threats of destroying his cattle or goods (y); but any entry effected by an actual breaking of a dwelling house, or attended by an actual array of force, will

(r) 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.

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

(t) Hawk. B. 1, c. 64, s. 61; Bac. Abr. Forcible Entry (F).

(u) R. v. Blake, 3 Burr. R. 1731,

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 (z). As the prosecutor under the statutes has a direct interest in the result of the trial, viz. by regaining his land if successful, he is held to be an incompetent witness (a).

Regaining Possession to which Party is entitled.-Hawkins says (b), 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. This, however, has been doubted by Lord Kenyon (c). Entering with strong hand to dispossess a tenant by force is a forcible entry, though he holds over after notice to quit expired (d); 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 not actionable (e). By 1 & 2 V. c. 74, 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.

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

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

(b) 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.

(c) R. v. Wilson, 8 T. R. 364 (ante,

p. 377); and see 8 Ad. & E. 828.

(d) Taunton v. Costar, 7 T. R. 431; and see 2 Shower, 853; 3 T. R. 294; Turner v. Meymott, 1 Bing. 158; Butcher v. Butcher, 7 B. & Cr. 399.

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.

(e) Ibid. See Coke's Rep. new edit. 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.