forcible entry.

does no wrong to the person wrongfully in possession by entering upon him; and it is said that by the old common law he might have entered by force. But forcible entry is an offence under the statute of 5 Ric. II. (A.D. 1381), which provided that "none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not with strong hand nor with multitude of people, but only in peaceable and easy [the true reading of the Parliament Roll appears to be 'lisible, aisee, & peisible'] manner." This statute is still in force here, and "has been re-enacted in the several American States, or recognized as a part of the common law" (p). The offence is equally committed whether the person who enters by force is entitled to possession or not: but opinions have differed as to the effect of the statute in a court of civil jurisdiction. It has been held that a rightful owner who enters by force is not a trespasser, as regards the entry itself, but is liable for any independent act done by him in the course of his entry which is on the face of it wrongful, and could be justified only by a lawful possession (q); and, it should seem, for any other consequential damage, within the general limit of natural and probable consequence, distinguishable from the very act of eviction. This is a rather subtle result, and is further complicated by the rule of law which attaches legal possession to physical control, acquired even for a very short time, so it be "definite and appreciable " (r) by the rightful owner. A., being entitled to immediate possession (say

(p) Cooley on Torts 323. For the remedial powers given to justices of the peace by later statutes, see Lambarde's Eirenarcha, cap. 4; 15 Ric. II. c. 2, is still nominally in force.

(a) Beddall v. Maitland (1881) 17 Ch. D. 174, 50 L. J. Ch. 401; Edwick v. Hawkes (1881) 18 Ch. D. 199, 50 L. J. Ch. 577, and authorities there discussed.

(r) Lord Cairns in Lows v. Telford (1876) 1 App. Ca. at p. 421.

as a mortgagee having the legal estate) effects an actual entry by taking off a lock, without having given any notice to quit to B. the precarious occupier; thus, "in a very rough and uncourteous way," that is, peaceably but only just peaceably, he gets possession: once gotten, however, his possession is both legal and rightful. If therefore B. turns him out again by force, there is reasonable and probable cause to indict B. for a forcible entry. So the House of Lords has decided (s). Nevertheless, according to later judgments, delivered indeed in a court of first instance, but one of them after consideration, and both learned and careful, A. commits a trespass if, being in possession by a forcible entry, he turns out B. (t). Moreover, the old authorities say that a forcible turning out of the person in present possession is itself a forcible entry, though the actual ingress were without violence. "He that entereth in a peaceable show (as the door being either open or but closed with a latch only), and yet when he is come in useth violence, and throweth out such as he findeth in the place, he (I say) shall not be excused: because his entry is not consummate by the only putting of his foot over the threshold, but by the action and demeanour that he offereth when he is come into the house" (u). And under the old statutes and practice, "if A. shall disseise B. of his land, and B. do enter again, and put out A. with force, A. shall be restored to his possession by the help of the justices of the peace, although his first entry were utterly wrongful: and (notwithstanding the same restitution is made) yet B. may well have an assize against A., or may enter peaceably upon him again (x).

But old authorities also distinctly say that no action is

(s) Lows v. Telford (1876) 1 App. Ca. 414, 45 L. J. Ex. 613.

(t) See the judgment of Fry J. in Beddall v. Maitland, and Edwick

v. Hawkes, note (9) last page.

(u) Lambarde's Eirenarcha, cap. 4, p. 142, ed. 1610.

(x) Ib. 148.

Fresh re

entry on

given by the statute to a tenant who is put out with force by the person really entitled, "because that that entry is not any disseisin of him" (y). There is nothing in them to countenance the notion of the personal expulsion being a distinct wrong. The opinion of Parke and Alderson was in accordance with this (~), and the decision from which they dissented is reconcileable with the old books only by the ingenious distinction-certainly not made by the majority (a)-of collateral wrongs from the forcible eviction itself. The correct view seems to be that the possession of a rightful owner gained by forcible entry is lawful as between the parties, but he shall be punished for the breach of the peace by losing it, besides making a fine to the king. If the latest decisions are correct, the dispossessed intruder might nevertheless have had a civil remedy in some form (by special action on the case, it would seem) for incidental injuries to person or goods. This refinement does not appear to have occurred to any of the old pleaders.

A trespasser may in any case be turned off land before trespasser. he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. His condition is quite different from that of a rightful owner out of possession, who can recover legal possession by any kind of effective interruption of the intruder's actual and exclusive control. A person who had been dismissed from the office of schoolmaster and had given up possession of a room occupied by him in virtue of his

(y) F. N. B. 248 H., Bro. Ab. Forcible Entry, 29.

(z) Newton v. Harland (1840) 1 M. & G. 644, 1 Scott N. R. 474; in Harvey v. Brydges (1815) 14 M.

& W. at pp. 442-3, they declared themselves unconverted.

(a) Tindal C. J. said that possession gained by forcible entry was illegal: 1 M. & G. 658.

'A

office, but had afterwards re-entered and occupied for
eleven days, was held not entitled to sue in trespass for an
expulsion by the trustees at the end of that time.
mere trespasser cannot, by the very act of trespass, imme-
diately and without acquiescence, give himself what the
law understands by possession against the person whom he
ejects, and drive him to produce his title, if he can without
delay reinstate himself in his former possession" (b). There
must be not only occupation, but effective occupation, for
the acquisition of possessory rights. "In determining
whether a sufficient possession was taken, much more
unequivocal acts must be proved when the person who is
said to have taken possession is a mere wrong-doer than
when he has a right under his contract to take posses-
sion" (c). And unless and until possession has been
acquired, the very continuance of the state of things
which constitutes the trespass is a new trespass at
every moment (d). We shall see that this has material
consequences as regards the determination of a cause of

excuse.

As regards goods which have been wrongfully taken, Recaption of goods. the taker is a trespasser all the time that his wrongful possession continues, so much so that "the removal of goods, wrongfully taken at first, from one place to another, is held to be a several trespass at each place" (e), and a supervening animus furandi at any moment of the continuing trespassory possession will complete the offence of

(b) Browne v. Dawson (1840) 12 A. & E. 624, 629, 10 L. J. Q. B. 7. If a new trespasser entered in this state of things, could the trespasser n inchoate occupation sue him, or the last possessor? Possibly both.

(c) Mellish L. J., Ex parte

Fletcher (1877) 5 Ch. Div. 809,
812.

(d) Holmes v. Wilson (1839) 10
A. & E. 503; Bowyer v. Cook
(1847) 4 C. B. 236, 16 L. J. C. P.
177; and see 2 Wms. Saund. 496.
(e) 1 Wms. Saund. 20.

Process of law:

larceny and make the trespasser a thief (ƒ). Accordingly the true owner may retake the goods if he can, even from an innocent third person into whose hands they have come; and, as there is nothing in this case answering to the statutes of forcible entry, he may use whatever force is reasonably necessary for the recaption (g). He may also enter on the first taker's land for the purpose of recapture if the taker has put the goods there (); for they came there by the occupier's own wrong (i); but he cannot enter on a third person's land unless, it is said, the original taking was felonious (k), or perhaps, as it has been suggested, after the goods have been claimed and the occupier of the land has refused to deliver them (1). Possession is much more easily changed in the case of goods than in the case of land; a transitory and almost instantaneous control has often, in criminal courts, been held to amount to asportation. The difference may have been sharpened by the rules of criminal justice, but in a general way it lies rather in the nature of the facts than in any arbitrary divergence of legal principles in dealing with immoveable and moveable property.

One of the most important heads of justification under a breaking paramount right is the execution of legal process. The mere taking and dealing with that which the law com

doors.

(f) Reg. v. Riley (1857) Dears. 149, 22 L. J. M. C. 48.

(g) Blades v. Higgs (1861) 10 C. B. N. S. 713, but the reasons given at page 720 seem wrong. Maim or wounding is not justified for this cause: but violence used in defence of a wrongful possession is a new assault, and commensurate resistance to it in personal self-defence is justifiable.

(h) Patrick v. Colerick (1838) 3 M. & W. 483, explaining Blackst. Comm. iii. 4.

(i) Per Littleton J., 9 Edw. IV. 35, pl. 10.

(k) Blackstone, 1. c.; Anthony v. Haney (1832) 8 Bing. 187, and Bigelow L. C. 374.

(4) Tindal C. J. in Anthony v. Haney but this seems doubtful.