aud committed either of them as the court fhall think proper, fuch fine not to exceed 20. or be lefs than 40s. and fuch imprisonment not more than three months, or less than one. /. 1. But this fhall not extend to prevent any perfon from taking or fifhing for floating fifh, in any fuch waters, with nets fitted for the purpose of catching floating fish only. f. 2. Offenders may And it fhall be lawful for any juftice upon complaint on be apprehended oath, that any perfon hath within thirty days next preceding committed any of the above offences, to iffue a warrant for apprehending the offender, and b inging him before himfelf or any other juftice of the fame county; who may, if he fee caufe, commit him to gaol, there to remain until the then next aflizes, or general quarter feffions, whichever fhall firft happen, unless he enter into recognizance before fuch juftice, with two fureties (each in 20.) to appear and anfwer to any indictment which may be preferred against him by virtue of this act. f. 3. Offenders refu names. And if any perfon (except as aforefaid,) fall be found fing to tell their actually committing any of the faid offences it shall be lawful for the owner, leffee, or occupier of fuch fifhery, or perfon intitled to take oysters there, and for his apprentice or fervant, in cafe the party fhall refufe to difcover his name and abode, to feize and detain fuch perfon, and forthwith to carry him before a juftice, who on oath being made of the offence fhall proceed against him in the fame manner as if he had been apprehended and brought before him by virtue of a warrant. S. 4. Recognizance But no juftice fhall commit any perfon, or take or reto profecute. quire any fecurity from him for his appearance, as aforefaid, unlefs one fufficient householder being an owner, leffee, or occupier of, or intitled to take oyiters in fuch fishery, fhall enter into a recognizance in 201. for appearing at the then next affizes or fellions, and then and there preferring and profecuting an indictment against fuch offender. /. 5. Bailing offenders. Former laws to And if after any perfon fhall have been committed, two fufficient furetics fhall, before any juftice, enter into recognizance in 201. each, with condition for his appearance at the then next affizes or feflions, and to answer to any indictment that may be preferred against him; fuch justice may by warrant order fuch perfon to be difcharged out of cuflody. f. 6. But this act fhall not affect any act now in force refpectremain in force. ing any particular oyfter fishery. /. 7. Nor preclude any perfon from profecuting at common law but no perfon fhall be liable to have an action brought against him for any offence for which he fhall have been punished bythis act. f. 8. V. Fifb V. Fishermen Jetting up trades. By 26 Geo., 3. c. 81, Every perfon who fhall for fevèn fucceffive years, have followed the occupation of a feaman or fisherman, on board of any veffel employed in the fisheries of Great Britain, (being a married man) may fet up and exercise any fuch trade, as he is apt and ab e for, in any town or place in Great Britain, without any moleftation for ufing fuch trade, under the fame regulations, and with the exception, as to the two univerfities of England, as any mariner or foldier, by 22 Geo. 2. c. 44, are au thorifed to do. f. 19. Forcible Entry and Detainer. FORCE, in a legal fenfe, imports fomething of a criminal nature, and is in the eye of the law odious, being always attended with fome breach of the peace. And the law taketh knowledge of two manners of force; the one may be termed a force in judgment of law, which accounteth every private trespass to be a force; fo as if I do but pafs over another man's grounds without licence, he may have his action of trefpafs against me, why or wherefore with force and arms, &c. Dalton c. 126. § I. But it has been faid, and it seems to have been the opinion of the ancient writers, that, at common law, if a man had a right of entry into lands or tenements, and could not prevail by fair means, he was permitted to enter with force. and arms, and to detain his poffeffion by force, unless he were put to the neceffity of bringing his action, by having neglected to enter in due time. Lambarde's Eiren. 127. Crom. 1. And Hawkins fays, that even at this day, he who is wrongfully difpoffeffed of his goods, may juftify the retaking of them by force from the wrong doer, if he refufe to redeliver them; for the violence which happens through the refiftance of the wrongful poffeffor being originally owing to his own fault, gives him no just cause of complaint, i afmuch as he might have prevented it by doing as he ought. 1 Hawk. c. 64. f. 1. But this, how far foever it may go in mitigation, can never be received in juftification of an unusual degree of violence. For according to Blackflone, (whofe opinion in this cafe feems moft reafonable) a man who hath been deprived by another of his property in goods or chattels perfonal, may lawfully claim and retake them, whereever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace; for it may frequently happen that this is the only opportunity which the owner has of doing himfelf juftice; his goods may be afterwards conveyed away or deftroyed, if he had no fpeedier remedy than the ordinary process of law; if, therefore, he can fo contrive it as to gain poffeffion of his proporty again, without force or terror, the law favours, and will justify his proceedings; but, as the public peace is a fuperior confideration to any one man's private property, and as if individuals were once allowed to use, Crom. 70, a. b. Dalton 297. 13 Vin. 379. Hawk. c. 64. f. I. However, it seems at this day to be agreed, that all forcible entries and detainers are offences at the common law, for which an indictment will lie; but then it feems that the indictment must not only contain the common technical words, with force and arms, but alfo fet forth the degree of force, fo that it may appear upon the face of the indictment to be an indictable offence, and not a bare trefpafs, for which the party has a civil remedy. 3 Burrows 1698, 1733. Thefe offences are alfo reftrained by feveral ftatutes, and under fuch it feems to be best to proceed : Thefe ftatutes, and the law arifing thereon, I fhall confider in the following order: I. What shall be deemed a forcible entry. II. In respect of what kind of poffeffions a perfon may IV. How fuch offences are punishable and herein I. Il bat fhall be deemed a forcible entry. Forcible entries By 5 Ric. 2. flat. 1. c. 8, "None fhall make entry into retrained lylands (or benefices or offices, of holy church, 15 Ric. 2. c. 2, or Ratute. What shall be "lands and tenements or other poffeffions, 8 Hen. 6. c. 9. f. 2.) "but where entry is given by law, and in fuch cafe not with "ftrong hand, nor with multitude of people, but only in "lawful and eafy manner. But by 8 Hen, 6. c. 9, હૃદ They which keep their poffef "fions with force in lands or tenements, whereof they or "their ancestors, or they whofe eftate they have in fuch "tenements, have continued their poffeffions three years, "fhall not be endamaged by force of any of the ftatutes "concerning forcible entry. /. 7. If one who pretends a title to lands, barely go over them, deemed an en- either with or without a great number of attendants, armed or unarmed, in his way to the church or market, or for try. ufe private force, as a remedy for private injuries, all focial justice must ceafe; the strong would give law to the weak, and every man would revert to a ftate of natures for thefe reafons it is provided, that this natural right of recaption shall never be exerted, where fuch exertion muft occafion ftrife and bodily contention, or endanger the peace of fociety, 3 Black. Com, 415. fuch fuch like purpose, without doing, any act, which either exprefsly or impliedly amounts to a claim of fuch lands, he cannot be faid to make an entry thereinto, within the meaning of the ftatutes. 1 Hawk. c. 64. S. 20. Yet in fuch cafe, if he makes an actual claim with any circumstances of force or terror, he seems to be guilty of a forcible entry, whether his adverfary actually quit his poffellion or not. 1 Hawk. c. 64 f. 21. Alfo, all those who accompany a man when he makes a forcible entry, fhall be adjudged to enter with him, within the intent of thefe laws, whether they actually came upon the lands or not. 1 Hawk. c. 64. S. 22. So alfo fhall thofe, who, having an estate in land, by a defeasible title, continue with force in the poffeffion thereof, after a claim made by one who had a right of entry thereto. Hawk. c. 64. f. 23. But he who barely agrees to a forcible entry made to his ufe, without his knowledge or privity, fhall not be adjudg ed to make an entry within these ftatutes, because he no way concurred in, or promoted the force. I Hawk. c. 64. f. 24. To make the entry forcible it feems clear, that it ought What a forcible to be accompanied with fome circumstances of actual vio- one. lence or terror; and therefore, an entry which hath no other force, than fuch as is implied by the law, in every trespass whatsoever, is not within the itatutes. c. 64. f. 25. I Hawk. An entry may be faid to be forcible, not only in rcfpect of a violence actually done to the perion of a man, as by beating of him if he refufe to relinquith his poffeffion, but alfo in refpect of any other violence in the manner of the - entry, as by breaking open the doors of a house, whether any perfon be in it at the fame time or not, especially if it · be a dwelling houfe. 1 Hawk. c. 64. f. 26. So alfo, every entry made with force, that is, either with apparent violence offered to the perfon of any other, or furnished with weapons or company which may offer fear, though it be but to cut, or take away another man's corn, grafs, or other goods; or to fell or crop wood, or do any other like trefpafs, and though he do not put the party out of his poffeffion, yet this is a forcible entry. Dalton c. 126. 2. But if the entry were peaceable, and they cut or take away any other man's corn, grafs, wood, or other goods, without apparent violence or force, though fuch acts are counted a diffeifin with force, yet they are not punishable as forcible entries. Lambarde's Eiren. 145. Dalton c. 126. $2. Yet What circum flances of terthe entry forci ror will make ble. Lau ful Yet if he enter peaceably, and there by force or violence cut or take away any corn, grafs, or wood, or forcibly or wrongfully carry away any other goods there being; this feemeth to be a forcible entry, punishable by the ftatutes. Dalton c. 126. §2. Cromp. 76. But it seems according to the opinion of Hawkins, that an entry is not forcible by the bare drawing up a latch, or pulling back the bolt of a door, there being no appearance therein, of it being done by strong hand, or multitude of people; and it hath been holden, that an entry into a houfe through a window, or by opening a door with a key, is not forcible. 1 Hawk. c. 64. s. 26. And whenever a man either by his behaviour or fpeech at the time of his entry, gives thofe who are in poffeffion of the tenements which he claims juft caufe to fear that he will do them fome bodily hurt, if they will not give way to him, his entry is efteemed forcible, whether he caufe fuch a terror, by carrying with him fuch an unusual number of fervants, or by arming himself in such a manner as plainly intimates a defign to back his pretenfions by force, or by actually threatening to kill, maim, or beat those who fhali continue in poffeffion, or by giving out fuch fpeeches as plainly imply a purpose of using force against those who fhall make any refiftance; as if one fay, that he will keep his polellion in fpite of all men, or the like. 1 Hawk. c. 64. 1. 27. But it feemeth that no entry fhall be judged forcible, from any threatening to spoil another's goods, or to deftroy his cattle, or to do him any other fuch like damage, which is not perfonal. 1 Hawk. c. 64. f. 28. And if by fair means, a man (whofe entry is lawful) fhall perfuade, or entice them which are within the house, to come out, and then he enter peaceably, without multitude, offenfive weapons, or other violence: this entry is juftifiable. Dalton c. 126. § 3. So it is, if he shall enter peaceably, and then by gentle purfuafions fend them out that are within the houfe, and after fhut the door, and keep them out; this is justifiable, fo that afterwards he holdeth it not forcibly, nor ufeth violence or threatening fpeeches. Ibid. So it is, if he take a man being out of his houfe, and then put or fend into the houfe a fervant, or other perfon, in a peaceable manner, and do hold away the other by imprifonment; this is no forcible entry nor detainer; but a falfe imprisonment punishable by action only. Lambarde Eiren. 149. Dalton c. 126. §4. So alfo, it fhall not be deen ed a forcible entry, if a man enter an houfe to apprehend a felon or like offender, ar |