also, by an act of outrage after the entry, as by carrying away the party's goods; but it seems that an entry is not forcible by a bare drawing up the latch, or pulling back the bolt of a door, there being no appearance therein of its being done by strong hand, or multitude of people. And it hath been holden, that an entry into a house through a window, or by opening a door with a key, is not forcible. 1 Haw. 145. In respect of the circumstances of terror, it is to be observed, that wherever a man, either by his behaviour or speech, at the time of his entry, give those who are in possession just cause to fear that he will do them some bodily hurt, if they will not give way to him, his entry is esteemed forcible, whether he cause such a terror, by carrying with him such an unusual number of attendants, or by arming himself in such a manner, as plainly intimates a design to back his pretensions with violence, or by actually threatening to kill, maim, or beat those who shall continue in possession, or by giving out such speeches as plainly imply a purpose of using force; as, if one say that he will keep his possession in spite of all men, or the like. 1 Hawk. 145.. But it seems that no entry shall be adjudged forcible from any threatening to spoil another's goods, to destroy his cattle, or to do him any other such like damage, which is not personal. 1 Haw. 146. However, it is clear, that it may be committed by a single person as well as by twenty. Ibid. But nevertheless, all those who accompany a man when he makes a forcible entry shall be adjudged to enter with him, whether they actually come upon the lands or not. 1 Haw. 144. It seems certain that the same circumstances of violence or terror, which will make an entry forcible, will make a detainer forcible also; and a detainer may be forcible, whether the entry were forcible or not. 1 Haw. 146. II. HOW THEY ARE PUNISHABLE BY ACTION AT LAW. The statute of England of 8 Hen. 6. c. 9. sect. 6. gave to the party injured a recompence by treble damages; but as that remedy is not recognized by our laws, the party seems to be left to his action at common law. III. HOW PUNISHABLE BY INDICTMENT. This offence being also of a public nature, may be punished by indictment at the suit of the commonwealth. See Dalt. c. 129. 1 Hawk. 147. And the tenement in which the force was made must be described with convenient certainly, and must set forth that the defendant actually entered and ousted the party grieved, and continueth his possession at the time of finding the indictment; otherwise he cannot have restitution, because it doth not appear that he needeth it. 1 Haw. 147, 149, 150. But if a man's wife, children, or servants, do continue in the house, or upon the land, he is not ousted of his possession; but his cattle being upon the land do not preserve his possession. Dalt, ch. 132. An indictment for forcible entry was quashed for not setting forth that the party was seized or disseized, or what estate he had in the tenement; for if he had only a term of years, then the entry must be laid, into the freehold of A, in the possession of B. 3 Salk. 169 Tenants for years, and by elegit, shall have the same remedy as those holding estates of freehold or inheritance. 1 Rev. Code, p. 152. sect. 8. IV. HOW PUNISHABLE BY A JUSTICE, SHERIFF, MAYOR, &c. The same power which is given to justices of the peace, and sheriffs, in their counties, is also granted to mayors, aldermen and serjeants, within their cities. Rev. Code, p. 152. sect. 6. No warrant of forcible entry, &c. shall be granted, without the oath or affirmation of the party praying it. Ibid. p. 151. sect. 2. The names of the persons so charged shall be inserted in every such warrant, to which persons the sheriff or officer shall give three days notice of the time and place of taking the inquisition. Without such notice, no jury shall be sworn to inquire of a forcible entry, &c. Ibid. p. 152. sect. 3. Whether the persons making such entries be present or departed before the coming of the justices, they may proceed in some convenient place, at their discretion, to inquire of the forcible entry and detainer; if a forcible entry, &c. be found, contrary to this act, the justices shall cause the party so put out to be re-seized, or re-possessed. Ibid. sect. 4. The justices, &c. making such inquiries, shall direct their warrants, &c. to the sheriff of the same county, to cause fit persons to come to inquire of such entries: a sheriff failing to do his duty forfeits eighty dollars, recoverable before any court of record; as well by indictment or information, to be taken only for the commonwealth, as by bill at the suit of the party grieved, as well for himself as the commonwealth. Ibid. sect. 5. It is said that justices may proceed to inquire of forcible entries, &c. although no complaint be made to them. Lamb. 147. And the defendant, if he is not present, ought to be called to answer for himself; for it is implied, by natural justice, in the construction of all laws, that no one ought to suffer any prejudice thereby, without having first an opportunity of defending himself. 1 Huw. 154. And it seems to be settled, at this day, that if the defendant tender a traverse of the force, the justice ought not to make any restitution till the traverse be tried. Ibid. It seems to be agreed that no other justices of the peace, except those before whom the indictment shall be found, shall have any power to make any award of restitution. 1 Haw. 152. And the justice may break open the house by force to reseize the same; and so may the sheriff do, having the justice's warrant. Dalt. ch. 44. That is, shail remove by force, by putting out all such offenders as shall be found in the house, or upon the lands, that entered or held with force. Dalt. ch. 130. And this he may do in his own proper person, or he may make his warrant to the sheriff to do it. Dalt, ch. 44. 1 Hawk. 151. 2. But "no restitution upon any indictment of forcible entry, or holding with force, shall be made to any, if the party indicted hath had the occupation, or hath been in quiet possession, by the space of three whole years together, next before the day of such indictment so found, and his estate therein be not ended or determined; which the party indicted may alledge for stay of restitution, and restitution shall stay till that be tried, if the other will deny or traverse the same; and if the same allegation be tried against the party so indicted, then the same party so indicted shall pay such costs and damages to the other party, as shall be assessed by the judges or justices, before whom the same shall be tried." Rev. Code, p. 152, sect. 7. And it hath been holden, that the plea of such possession is good, without shewing under what title, or of what estate such possession was; because it is not the title, but possession only, which is material, in this case. 1 Hawk. 152. It was holden in Leighton's case, that the party may also traverse the entry and force. See 1 Hawk. 142. And this traverse must be tendered in writing, and not by a bare denial of the fact in words; for thereupon a venire facias must be awarded, a jury returned, the issue tried, a verdict found, and judgment given, and costs and damages awarded; and there must be a record, which must be in writing, to do all this, and not a verbal plea. Dalt. ch. 133. 1 Hawk. 154. Upon which traverse tendered, the justice shall cause a new jury to be returned by the sheriff, to try the traverse; which may be done the next day, but not the same day. Dalt, ch. 133. V. HOW PUNISHABLE ON A CERTIORARI. Although, regularly, the justices only who were present at the inquiry, and when the indictment was found, ought to award restitution, yet, if the record of the presentment or indictment shall be certified by the justice or justices into a superior court, or the same presentment or indictment be removed and certified thither by certiorari, the justices of that court may award a writ of restitution, to the sheriff, to restore possession to the party expelled; for the justices of the said court have a supreme authority in all cases of the commonwealth. Dalt. ch. 44. Also where, upon a removal of the proceedings into the superior court, the conviction shall be quashed, the court will order restitution to the party injured. As in the case of K. v. Jones. A conviction of forcible entry was quashed for the old exception of messuage or tenement, by reason of the uncertainty; but the restitution was opposed, on an affidavit that the party's title (which was by lease) was expired since the conviction. But the court said, they had no discretionary power in this case, but were bound to award restitution on quashing the conviction. Str. 474. On a motion for a certiorari in this case, no party is necessary. 1 Rev. Code, p. 81, sect. 45. sect. 12. notice to the adverse 2 Rev. Code, p. 155, VI. HOW PUNISHABLE AS A RIOT. If a forcible entry, or detainer, shall be made by three persons, or more, it is also a riot, and may be proceeded against as such, if no Inquiry hath been before made of the forces. Dalt. ch.44. VII. PRECEDENTS. (A) Precept to the sheriff to summon a jury. to wit: Whereas AJ, of day of in the county aforesaid, hath this day complained upon oath before me, J P, a justice of the peace for the last past, A O, of said county, that on the labourer, forcibly entered into one tenement, containing. acres of land, lying, &c. (here describe the land particularly) then and there being in the possession of the said A J, and the said A J did unlawfully and forcibly expel from the same, and him so expelled, as aforesaid, did keep out and detain from the possession of the said lands and tenements. These are therefore on behalf of the commonwealth to require you, to cause to come before me twenty-four* good in and lawful men of this county, of in the parish of the county aforesaid, on the next (twelve of whom to be sworn) to inquire, upon their oaths, of such things as shall then and there be enjoined them, on behalf of the commonwealth, And this you shall touching the forcible entry and detainer aforesaid. in no wise omit, under the penalty of eighty dollars, and have then there this warrant. Given under my hand and seal, &c. day of Juror's Oath. You shall true inquiry and presentment make of such things as shall come before you concerning a forcible entry (or detainer) said to have been lately committed in county, and a true verdict give, according to your evidence. you God. belonging to in this So help to wit: (B) The Inquest. An inquisition for the commonwealth, indented and taken at in the parish of in the and county aforesaid, the day of year of the commonwealth, before E P, a justice of the peace for the said county, and by the oath of F G, HJ, &c. good and lawful men of the said parish and county; who, being charged and sworn, upon their oaths, do say, that A J, of &c. was lawfully and peaceably seized in his demesne as of fee (if not seized "Though only twelve are swoRN, yet twenty-four are to be RETURNED, to supply the defects or want of appearance of those that are challenged off, or make default." (2 Hale's Hist. Com. Law, 137.) And so are all the precedents. Ibid. Hargr. note (3.) BarSee, as to the NUMBER of jurors, Co. Lit. 155. a. rington on Anc. Stat. 18. Tr. per pais 92, 93. 3 Bl. Com 375. Christian's note. i fee, then say possessed) of and in one messuage, with the appurteDances, situate in the parish of and county aforesaid, and his said seizen (or possession) so continued, until A B, C D, &c. and other malefactors, to the jurors aforesaid unknown, on the day of last past, with strong hand and armed power, into the mes suage aforesaid, with the appurtenances, did enter, and him the said AJ thereof disseized, and with strong hand expelled, and him the said A J, so disseized and expelled from the said messuage, with the appurtenances aforesaid, from the said day of until the day of taking this inquisition, with like strong hand and armed power, did keep out, and do yet keep out, to the great disturbance of the commonwealth, and against the form of the statute in such case made and provided. In witness whereof, the said jurors to this inquisition have severally put their seals, the day, year, and place, first above mentioned (C) Warrant to the sheriff for restitution. County, to wit: E P, one of the justices of the peace for the said county, to the sheriff thereof, greeting: Whereas, by an inquisition taken before me, at parish of in the day of and county aforesaid, the in the day of year of the commonwealth, upon the oaths of J B, B H, &c. and by virtue of the statute made and provided in cases of forcible entry and detainer, it is found that A B, C D, &c. on the now last past, into a certain messuage, with the appurtenances, of A J, of the parish and county aforesaid, situate, lying, and being in the said parish and county, with force and arms did enter, and him the said AJ thereof did dissieze, and with strong hand drive out, and him the said A J, thus driven out from the aforesaid messuage, with the appurtenances, from the day of aforesaid, to the day of the taking of the said inquisition, with strong hand, and armed force, did keep out, and do yet keep out, as by the inquisition aforesaid more fully appeareth of record. Therefore, on behalf of the commonwealth, I charge and command you, that, taking with you the power of the county (if needful) you go to the said messuage, and other the premises, and the same, with the appurtenances, you cause to be reseized; and that you cause the said AJ to be restored and put into his full possession thereof, according as he before the entry aforesaid was seized, according to the form of the said statute; and this you shall in no wise omit. Given under my hand and seal, at the county aforesaid, the day of in the year of the commonwealth. (D) Record of a forcible detainer upon view. day of in the Be it remembered, that on the year of the commonwealth, M B complained to us, E P and W T, two of the justices of the commonwealth, assigned to keep the peace in the said county, that D T, of &c. G, of &c. into the (here describe the place, lands, or tenement) of him the said M B, situate within |