
    
      Pauley v. Chapman.
    August, 1843,
    Lewisburg.
    (Absent Cabell, P., and Brooke, J.)
    Forcible Entry — Force Necessary. — Case In which, on a complaint by a party Under the statute in 1 R. C. of 1819, ch. 115, p. 455, that another had forcibly turned him out of possession of a tenement, the jury returned a special verdict finding the facts, and upon those facts the court considered that the entry was not “with strong hand or with multitude of people,” and rendered judgment that the complaint be dismissed.
    On the 4th of May 1839, Edward Chapman exhibited a complaint before a justice of the peace of the county of Bogan, against Henry Pauley, for forcibly turning him out of possession of a tenement in that county. The complaint was made, and a warrant issued by the justice, in the form prescribed by the act in 1 R. C. of 1819, ch. 115, § 4, 5, 6, p. 455, 6. Two justices of the county attended at the courthouse on the day specified in the warrant, and constituted a court for the trial of the complaint. The case was, however, adjourned until the 21st of August 1839, when a jury was impanelled, and after being duly charged, returned a special verdict, which found, That on the 20th of November 1837, the plaintiff received a deed of that date, executed by John Joseph Besnoist, by John Baidley as his attorney in fact, to the said plaintiff, embracing the land in controversy; which deed was acknowledged by the said attorney in the office of Bogan county court on the 21st of November 1837, and admitted to record. That, the said plaintiff had three improvements on the lands embraced in the said deed, at the time the defendant entered as hereinafter mentioned. That in January 1838, the 236 defendant, with two hired hands, *entered upon part of the land embraced in the said deed, about a mile and three quarters from one of the said improvements of the plaintiff, and about three quarters of a mile from the nearest improvement. That the land on which the defendant entered was in native forest, and totally unimproved; and at the time of the entry of said defendant, no person was upon any portion of the land embraced in said deed, except the tenant of the plaintiff, with his family; which tenant occupied the improvement most remote from the place of entry of the defendant, and had occupied it for two years or more previous thereto. That the defendant and his hands cut down timber growing upon the land in controversy, at the place where he the defendant entered as aforesaid; built thereon a small cabin and covered the same with clapboards, put a floor in the house, and a door, fastened up said door,' and then left the premises, which have continued uninhabited by the defendant or any other person. That while the defendant was building the house aforesaid, neither the plaintiff nor any other person was present, except the hands aforesaid; and that no other violence or force was committed by the defendant, than the cutting the timber* building the house, and fastening up the door aforesaid. That about a month before the entry aforesaid by the defendant, the said defendant went to the residence of the plaintiff, some three or four miles from the land in controversy, and proposed to purchase a portion of the land comprised in said deed, which lay below the land in controversy. That- the plaintiff refused to sell the land which the defendant wished to purchase, but proposed selling him land lying above that he wished to purchase: when the defendant and plaintiff started to see the same.
    If upon these facts the law should be for the plaintiff, then the jury found a verdict in the form prescribed for a verdict for the plaintiff on a complaint of forcible 237 *entry; and if the law should be for the defendant, then the jury found a verdict in the form prescribed for a verdict for the defendant on such complaint.
    The county court, being of opinion that the law was for the defendant, rendered judgment against the plaintiff, and that the defendant recover of him his costs.
    
      The circuit court awarded a supersedeas, on the petition of the plaintiff Chapman; and on the 11th of May 1840, reversed the judgment of the county court with costs, and entered judgment that the plaintiff recover against the defendant his possession of the said tenement, and also his costs in the county court.
    To the judgment of the circuit court, a supersedeas was awarded on the petition of the defendant Pauley.
    B. H. Smith for the plaintiff in error.
    This complaint is founded upon that part of the statute which forbids an entry “with strong hand or with multitude of people,” and gives a remedy to the party turned out of possession “by such forcible entry;” 1 R. C. of 1819, ch. 115, | 2, p. 455. To sustain a complaint for forcible entry, the force must be actual, not constructive ; otherwise the remedy given for an unlawful entry would be unnecessary. In every case of unlawful entry, force is implied. But there is an obvious distinction made by the statute between cases of actual and cases of constructive violence. In the latter, the defendant may shew a right of entry at the trial; but in cases of forcible entry, he is precluded from so doing. If a complaint for forcible entry can be sustained in a case in which there has been no actual force, the defendant ought to be permitted to shew a right of entry as a justification : otherwise, in all cases of peaceable entry, the plaintiffs will proceed as for a forcible entry, and thus preclude the defendants from shewing a right of entry; contrary to the intention of the statute. Rex v. Bathurst, Sayer 225, Rex v. Storr, 3 Burr. 1698, 238 and *The King v. Wilson & others, 8 T. R. 357, are authorities pertinent to the present case. See also 1 Hawkins 500, 501, 2.
    The attorney general for defendant in error.
    Here the plaintiff was in actual possession of the land, he having three improvements on it, one of which at least was in possession of his tenant. The defendant entered in violation of the plaintiff’s rights and without colour of title. This entry and ouster of the actual possession of the land, with the intention to hold the same against the will of the plaintiff, ■ was a forcible entry, although without actual force at the time of the entry. Coke Hitt. 257 a, 257 b, 3 Tho. Co. Hit. 80, 81, 545. The entry was also forcible, because with multitude of people. The expression in the act is “with strong hand or with multitude of people;” either constitutes a forcible entry. Three persons are sufficient to constitute a riot at common law, and the same number is sufficient to constitute a multitude under this act. The force peed not be applied to persons; it is sufficient if applied to property. 3 Bac. Abr. p. 716 of Bond. edi. of 1832, Forcible Entry, B. A forcible entry into a house in the absence of all persons, is a forcible entr3r under the statute, 2 Rolle 2. And a disseisin accompanied with robbery of goods is a forcible entry. 2 Inst. 235. See also 1 Hawkins (edi. by. Curwood) p. 510 et seq. Hawkins ta.kes a distinction between acts of violence and circumstances of terror. Acts of violence to property, though unaccompanied with terror to the person, make the entry forcible. Rex v. Jopson &c., Sayer 27, 1 Wils. 325. In the present case, the acts of cutting timber and building a hous,e were acts of violence and force. The cases of Rex v. Bathurst, Sayer 225, Rex v. Storr, 3 Burr. 1698, and The King v. Wilson & others, 8 T. R. 357, being prosecutions on behalf of the crown, it was necessary 239 that *there should be an offence against the public, as well as against the private right of the person injured. But our statute gives only a civil remedy. A breach of the public peace is not an ingredient in a case under it; and a less degree of force therefore seems to be sufficient. Where the dispossession is such, that there may be implied from the act a determination to effect it by force if necessary, or to resist by force a restoration of the possession, it should be held, under our statute, that there is a forcible entry.
    Smith in reply.
    The authorities before cited establish these propositions: 1. That an entry without actual violence is not an entry with strong hand or multitude of people, where threats or weapons or numbers are not resorted to, to overawe the tenant in possession, and drive him from the premises. 2. That independently of the statute, where an entry was made with force, and the tenant forcibly turned out of an actual possession, an indictment lay at common law. 3. That where trespass was committed on the premises of another, but without actual force against the person of the possessor, and damage was done to the freehold by digging it up or cutting trees, or other injuries of like kind, an indictment would not lie at common law. It matters not whether, in the cases cited, the prosecutions were at common law or under the statute: whether the one or the other, they shew what is an entry with strong hand or multitude of people, and that such entry is not sustained by constructive force, but by actual violence, or by threats, weapons, putting in fear, or overawing by numbers. It is not enough that there be injury to personal property, or destruction of the soil, or the trees growing on it. The threats, violence and overawing must be to the party removed from the possession. Our legislature well knew that an indictment did not lie at common law 240 for unlawfully entering *on the land of another, and cutting and even carrying away timber, when they passed the act of the 14th of February 1823 for the punishment of such and other trespasses, and made them misdemeanours. Sess. Acts OÍ1822--3, ch. 34, p. 36; Supp. to Rev. Code, p. 280.
    Here, Chapman had at most but a constructive possession of all beyond his enclosures. To say that he has been violently turned out of such a possession, at a time when he and his tenants, and all claiming' connexion with- him by title or kindred, were miles distant and wholly ignorant of the entry, is a strange idea.
    
      
      See monographic note on "Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 352.
    
   PER CURIAM.

The judgment of the circuit court is reversed with costs, and that of the county'court affirmed.  