freehold out now he who is so put out shall not maintain an action of forcible entry against him that hath title and right of entry because that that entry is not any disseisin of him." To this a note, said to be by Lord Hale, is appended; viz., " He shall not maintain it on the stat. Rich. II.; see 9 Hen. VI. fo. 19, pl. 12, but the party shall make fine to the king for his forcible entry." The meaning of Lord Hale doubtless was, that the action was no more maintainable on the statute of Richard than it was declared to be by Fitzherbert on the statute of Henry, on which this author was expressly commenting. This is clear from the case which is cited by Lord Hale from the Year Books, decided the year after the passage of the statute of Henry, which held expressly, that, if the entry of the defendant was with title, no action lay, "but for the force the party entering shall make fine to the king." The careful reader will be somewhat surprised to find that Lord Hale's note is quoted by the court: "He shall not maintain it by the statute Rich. II. but may by the statute of Henry VI.," thus converting a decision from the Year Book, expressly denying the action into a statute authorizing it, by the deliberate insertion of the words italicized, not one of which is to be found in the author cited. In any tribunal less respectable than the court of Vermont, this might be called by even a severer name" than "blundering." It may be added, that the law laid down in the case from the 9 Hen. VI. is reaffirmed in 15 Hen. VI. fo. 17, pl. 12.

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The general ground on which this case proceeded, that the entry by force being prohibited could confer no legal possession, must be considered as overruled in Vermont by the later case of Mussey v. Scott, 32 Vt. 82, where the landlord having a right of entry, violently broke into the premises during the temporary absence of the tenant, and was nevertheless held to have acquired a lawful possession thereby, which he might defend by force against the tenant. The court distinguish Dustin v. Cowdrey on the ground that the act here was not within the Statutes of Forcible Entry. But this was not so. Breaking violently into a dwelling-house is as indictable as force to the person.2 We must therefore regard

1 The decision is exactly given in substance in Lord Hale's note; it runs, "On n'aura action quand il est ouste ove fortmain par un autre, ou entre fuit congeable [justifiable]; pur ceo quod pur le fortmain le party convict fera fine au Roy. . . . Et pur ceo quod le breve reherce le statut. . et pur ceo qu'il ne dit ubi ingressus non datur per legem, le breve abatist; car si le entre fuit congeable sur le plaintiff, il n'ad cause d'action." 2 Rex v. Bathurst, 3 Burr. 1701 and 1702.

this decision as a return to the earlier doctrines held by this court. In Illinois, however, in the cases of Page v. Depuy, 40 Ill. 506, Reeder v. Purdy, 41 Ill. 279, the court considering the English authority equally balanced and the American cases conflicting, adopt the conclusions of Dustin v. Cowdrey, which they consider established by incontrovertible arguments. As these cases rest therefore mainly on authority, we leave them to stand or fall with the cases on which they rely. It is merely to be remarked, that the court is consistent in its view of the effect of the statute, and consider that any violent entry, even after the tenant has abandoned the premises, is equally within the prohibition of the statute, and subjects the landlord to an action of trespass, a conclusion which no other court has ventured to adopt, and which is distinctly repudiated even by those which have sustained the action of trespass in other cases, but which is, nevertheless, the logical result of implying from the statute a liability not therein expressed; the absurdity of the conclusion not lying in the means by which it is reached, but in the doctrine from which it is drawn.

In Missouri, the true distinction is drawn, and it is held that whatever remedy the ousted tenant may have by the statutory process of restitution, he cannot maintain trespass against the landlord. Krevet v. Meyer, 24 Mo. 107; Fuhr v. Dean, 26 Mo.

116.

In Massachusetts, notwithstanding some general dicta or decisions not duly limited, the law is clearly in accordance with the English law, and an action lies by the tenant neither for a forcible entry nor for forcible expulsion if no unnecessary force is used. The early case of Sampson v. Henry, 11 Pick. 379, in which the dictum of Judge Wilde occurs, which we quoted at the beginning of this article, was trespass for assault. The plaintiff was beaten with a pitchfork by the landlord while the latter was effecting an entry; and the language used by the court so far from announcing the doctrine, sought to be derived from it, of the general unlawfulness of force, was immediately preceded by the statement, that the defence claimed was "the right not only of breaking open the house and entering therein with force and violence, but also of committing an assault with a dangerous weapon." The whole simply means that as improper force was used, trespass for assault lay. That trespass qu. cl. did not lie, was held in the same case in 13 Pick. 36. In Miner v. Stevens, 1 Cush. 482, 485, the same

judge cites the English and New York cases, which had held that possession could be regained by force, and that no action lay, and declares this to be the law of Massachusetts. In Meader v. Stone, 7 Met. 147, an action of trespass qu. cl. was held not maintainable by a tenant at sufferance against his lessor. The same decision was made in Curtis v. Galvin, 1 Allen, 215, where the tenant was forcibly removed, and in Moore v. Mason, Ib. 406, where the entry was forcible. In Commonwealth v. Haley, on indictment against the landlord for assault on the tenant with a hatchet, the court held, that the landlord, if resisted in taking possession, must desist, and did not limit this proposition as they should, to the case of a criminal proceeding; but in Mugford v. Richardson, 6 Allen, 76, an action of tort in the nature of trespass was held not to lie against a landlord, who, after taking peaceable possession of part of the premises, overcame with force the tenant's resistance to his repossession of the remainder. The same law was laid down in Winter v. Stevens, 9 Allen, 526, 530, where the circumstances were even stronger, entry being made by the owner accompanied by five men and the tenant being ejected with force. The general doctrine that expulsion was mere aggravation in trespass qu. cl., and answered by plea of title, was declared in Merriam v. Willis, 10 Allen, 118, and the right to expel with necessary force affirmed in Pratt v. Farrar, lb. 519, 521, and decided in Morrill v. De la Granja, 99 Mass. 383. Clearly, therefore, no civil action is maintainable in Massachusetts by inference from the general prohibition of the statute.

It will have been apparent from the cases cited in this discussion and the principle upon which they have gone, that no such distinction exists as has sometimes been intimated, restricting the right to expel to cases where the entry has been peaceable. No such distinction has ever been decided to obtain, but the doubt has arisen from the language of the courts; as, for instance, in Mugford v. Richardson, supra, where it is said, "the landlord being in peaceable possession had the right to use force," &c., whence the inference has been suggested that such peaceable possession was a condition precedent to the right to expel. But it has been clearly established from the cases, that the possession gained by force is as legal as if gained peaceably and equally efficient to revest title, the criminal liability in no way affecting the efficacy of the entry civilly.

A doubt might also arise from a hasty perusal even of some of the cases which authorize a forcible repossession by the lessor, from the terms employed by the courts to describe the amount of force permissible. Thus in Winter v. Stevens, 9 Allen, 526, 530, it is said that a tenant at sufferance may be ejected "by force if reasonable and without a breach of the peace, and not disproportionate to the exigency." But any force applied to a person against his will is an assault and a breach of the peace. The exception intended is merely excessive force. The language of Parke, B., above cited, is clearer, and admits of no such ambiguity.1

If excessive force is used, the landlord is liable for such excess, but only in an action of trespass for assault. Such excess, whether occurring in the entry or subsequent expulsion, does not affect the legality of that entry or of the possession thereby acquired, but merely fails to receive from that possession the protection which a proper use of force would have had. Thus, in Sampson v. Henry, 11 Pick. 379; 13 Pick. 36, the landlord though liable for the excess of force in trespass for assault, was not liable in trespass qu. cl. It has been intimated that by such excess of force the landlord becomes a trespasser ab initio, as his authority to enter is one given "by law" within the distinction taken in the Six Carpenters' Case, 8 Co. 146 a; Whitney v. Swett, 2 Fost. 10. But this seems to be a misapprehension. Even if the authority of the lessor to enter, arising from the contract of demise by the expiry of the tenant's title in accordance with its nature or its terms, could not be regarded as given by "the party" rather than by "the law," still"the abuse of the authority of law which makes a trespasser ab initio is the abuse of some special and particular authority given by law, and has no reference to the general rules which make all acts legal, which the law does not forbid:" Page v. Esty, 15 Gray, 168. It was accordingly held in this case that the right of the owner to expel, flowing from title, was not such a special and particular authority, and that the owner was liable only for excess of force. A similar rule was applied in Johnson v. Hannahan, 1 Strob. 313, and the doctrine of trespass ab initio was limited to cases where the act without a license would be a trespass, such as the right to distrain, and did not apply where the entry was under title.

But while it is clearly the English law, and the undoubtedly preponderating opinion in the American courts, that no civil action lies 1 See Harvey v. Brydges, ante.

against a landlord for regaining with force the possession of the demised premises, unless there is excess of force, and then only for such excess; yet in regard to the statutory process for restitution, we apprehend that in America the prevailing rule is the reverse, and that by this proceeding the landlord may be compelled to give up a possession obtained by violent means. In England, restitution was always the fruit of a criminal process, it being awarded only where the party forcibly entering had been convicted, or at least an indictment had been found, or where the force had been found on inquisition before a justice of the peace, an officer of purely criminal jurisdiction. See Dalton's Justice, c. 44.1 In no case, moreover, was restitution made, except to a freeholder under the Stat. 8 Hen. VI., or to a tenant for years under the Stat. 21 Jac. 1. Under these statutes, where a writ of restitution was sought, it was requisite for the title of the plaintiff to be truly set out, and mere possession made a prima facie title, only if not traversed; Rex v. Wilson, 8 T. R. 357, 360; 2 Chit. Crim. Law, 1136. But in the United States almost universally restitution is given on a summary civil process. We do not propose here to give in detail the various enactments by which this is conferred, but it may be said generally with substantial accuracy that a bare peaceable possession without title suffices for its maintenance. Taylor, Land. & Ten. (5th ed.) § 789, n. 5. This is especially true of the Western States, where this statute was regarded as the means to prevent entirely the use of force in the assertion of title, an evil mainly to be apprehended in a new country; and if force was used, restitution was awarded irrespective of title, the intention being to compel title in all cases to be settled by due process of law: King v. St. Louis Gas Light Co., 34 Mo. 34. In some States it was incorporated into the act, giving the process, that title should not be inquired into therein; 2 and where not so expressly enacted, the same rule was held to prevail at law.

1 Restitution is made by the justice, or he may certify the finding before him as a presentment or indictment to the King's Bench, as the highest criminal court. In 3 Blackst. Comm. 179, it is said that restitution is made for the "civil injury" and a fine for the "criminal injury." This merely refers to the person who is to receive the penalty imposed, but does not make the proceeding in any way civil any more than the indictment against common carriers for negligence causing death is under the Massachusetts statute, because the fine goes to the representatives of the deceased.

Alabama Rev. Code, 1867, § 3307; New Jersey, Nixon's Dig. of 1861, p. 301; Iowa Code, § 2362.