Not infrequently the landlord, upon the failure of the tenant to relinquish possession when his right thereto expires, has undertaken to resume possession by force, and the question of the nature of the liabilities to which the landlord may thereby subject himself has been the subject of considerable controversy. He is, under the English statutes of Forcible entry and detainer, and under the local statutes of some states, liable to a criminal prosecution in such a ease, his right to possession being no justification for his disturbance of the public peace.36

34. Ante Sec. 57b note 4.

35. Statutory proceedings of this character are discussed in 2

Tiffany, Landlord & Ten. ch. 28.

36. See Y. B. 9 Hen. 6, f. 19, pl. 12; 1 Hawkins, Pleas of the

And in many of the states, the tenant can, in case of such forcible entry by the landlord, maintain an action to recover possession of the premises under the statutes of forcible entry and detainer, it being usually considered that one cannot defend such an action by showing that he was entitled to the possession which he thus forcibly took.37 A more difficult question arises, however, when the tenant undertakes to assert a pecuniary liability in damages on the part of the landlord for thus taking possession.

The cases are usually to the effect that the mere entry on the land by the reversioner in such case, although forcible, does not constitute a trespass, giving a right of action in damages, in view of the well recognized rule that a plea of liberum tenementum or title in the defendant is a good defense to an action of trespass quare clausum fregit. The fact that the statutes make such an entry a criminal offense, and give the person entered upon a right to recover the possession of which he has thus been deprived, cannot be regarded as authorizing a recovery of damages on account of such entry.38 But there are occasional decisions to the effect that a forcible entry by the reversioner does make him liable in trespass or its equivalent for breaking the close,39 this view being ordinarily based on the theory that, since this is illegal as being forbidden by the statutes of forcible entry and detainer, there must be a right to recover damages on account thereof, while occasionally the fact that there is a summary proceeding provided by statute for the recovery of possession is referred to as showing a legislative intent that he shall not take possession by force.40

Crown, c. 64, Sec. 3; McClain, Criminal Law, Sec.Sec. 836-841; Edwick v. Hawkes, 18 Ch. Div. 199; Turner v. Meymott, 1 Bing. 158; Taunton v. Costar, 7 Term R. 431; Manning v. Brown, 47 Md. 506; Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Wood v. Hyatt, 4 Johns. (N. Y.) 313; Souter v. Codman, 14 R. I. 119, 51 Am. Rep. 364.

37. See Vinson v. Flynn, 64 Ark. 453, 39 L. R. A. 415, 46 S. W. 186, 43 S.W. 146; Phelps v. Randolph, 147 111. 335, 35 N. E. 243, aff'g 45 111. App. 492; Scott v. Willis, 122 Ind. 1, 22 N. E. 786; Smith v. Reeder, 21 Ore. 541, 15 L. R. A. 172, 28 Pac. 890; and cases cited 13 Am. & Eng. Enc. Law (2d Ed.) 753, 756; 19 Cyclopedia Law & Proc. 1125.

38. Pollen v. Brewer, 7 C. B. (N. S.) 371; Beddall v. Maitland, 17 Ch. Div. 174; Vinson v. Flynn, 64 Ark. 453, 39 L. R. A. 415, 46 S. W. 186, 43 S. W. 146; Tribble v. Frame, 30 Ky. (7 J. J. Marsh.) 599, 23 Am. Dec. 439; Manning v. Brown, 47 Md. 506; Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Smith v. Detroit Loan & Building Ass'n, 115 Mich. 340, 39 L. R. A. 410, 69 Am. St. Rep. 575, 73 N. W. 395; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484, Krevet v. Meyer, 24 Mo. 107 (but see Emerson v. Sturgeon, 59 Mo.

In jurisdictions in which the forcible entry on land is itself regarded as constituting a cause of action in trespass quare clausum, any violence employed against the tenant or his family could, no doubt, be alleged in aggravation of damages,41 though ordinarily there would be a separate count inserted for the assault. But in most jurisdictions, as above stated, there can be no recovery as for trespass on the land in such case, and in the numerous cases to that effect there is no suggestion of a distinct cause of action arising from the use of force against the

404); Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80; Hyatt v. Woods, 4 Johns (N. Y.) 150; Livingston v. Tanner, 14 N. Y. (4 Kern.) 64 {dictum); Overdeer v. Lewis, 1 Watts & S. (Pa.) 90, 37 Am. Dec. 440; Souter v. Codman, 14 R. I. 119, 15 Am. Rep. 364; Willoughby v. Northeastern R. Co., 32 S. C. 410, 11 S. E. 339; Rush v. Aiken Mfg. Co., 58 S. C. 145, 79 Am. St. Rep. 836, 36 S. E. 497. 39. Mason v. Hawes, 52 Conn. 12, 52 Am. Rep. 552; Entelman v. Hagood, 95 Ga. 390, 22 S. E. 545; Reeder v. Purdy, 41 111. 279; Whitney v. Brown, 75 Kan. 678, 11 L. R. A. (N. S.) 468, 12 Ann. Cas. 768, 90 Pac. 277; Brock v. Berry, 31 Me. 293; Thiel v. Bull's Ferry Land Co., 58 N. J. L. 212, 23 Atl.

281 (Only nominal damages recoverable. And compare Mershon v. Williams, 62 N. J. L. 779, 42 Atl. 778); Dustin v. Cowdry, 23 Vt. 631; Griffin v. Martel, 77 Vt. 19, 58 Atl. 788. The earlier Vermont case is to a considerable extent based on a misreading of the old authorities on the English statutes of forcible entry, as is shown in an article by Joseph Willard, Esq., in 4 Am. Law Rev.

40. Mason v. Hawes, 52 Conn. 12, 52 Am. Rep. 552; Entelman v. Hagood, 95 Ga. 390, 22 S. E. 545; Thiel v. Bull's Ferry Land Co., 58 N. J. L. 212, 33 Atl. 281.

41. Sedgwick, Damages, Sec. 929. See Taylor v. Cole, 1 H. Bl. 555; Davison v. Wilson, 11 Q. B. 890.

Real Property.

[ Sec. 73 tenant, provided such force is no greater than is necessary for the purpose of effecting an entrance, or of expelling the tenant if he refuses to leave, and there are cases which in terms deny any such liability on the part of the landlord.42 There are however decisions and dicta to a contrary effect.43 In any jurisdiction the reversioner would he liable in damages on account of any excess of force used by him.44