At this term the Chief Justice said the Court were inclined to doubt whether forcible entry and detainer could be maintained, where the entry was under a judgment and execution ; and also whether this process could be maintained on behalf of Russell, since it appeared that Winslow, and not Russell, was the person turned out of possession.
The case was thereupon again spoken to by the counsel for the prosecution, and the next day the Court ordered the proceedings to be quashed, on the ground last suggested by the Chief Justice.1
The respondent then moved for a writ of re-restitution ; to which it was objected, that the statute makes no provision for such a writ, but only says that the proceedings may be quashed. Rand answered that it would be nugatory to quash the proceedings unless such a writ should be granted, and that in many instances where the statutes give a remedy, without providing for a writ by which it is to be effected, the Court nevertheless award a suitable process.2 He referred to Rex v. Jones, 1 Str. 474 ; Com. Dig. Forceable Entry, D, 5, where Sav. 68, and 2 Cro. 151, are cited ; The People v. Shaw, 1 Caines’s R. 125 ; The People v. King, 2 Caines’s R. 98 ; Cooke v. Gibbs, 3 Mass. R. 196.
At a subsequent day a writ of re-restitution was awarded.3
Forcible entry lies only for one, who has had actual possession. Childress v. M'Gehee, 1 Minor, 131. Tenant at will may maintain it M‘Donald v. Gayle, 1 Minor, 98 ; The People v. Van Nostrand, 9 Wendell, 50; The People v. Reed, 11 Wendell, 157. The question of title cannot be tried in this action. The People v. Godfrey, 1 Hall, 240; Dutton v. Tracy, 4 Connect. R. 79. See Bliss v. Bange, 6 Connect. R. 78. In order to constitute a forcible entry the possession must not be scrambling, but quiet, peaceable and actual, and the entry must be accompanied by actual force or intimidation. Commonwealth v. Keeper of the Prison, 1 Ashmead, 140; Bird v. Bird, 2 Root, 411; 3 Chitty Crim. Law, 1135, 1136, in notis.
Revised Stat. c. 81, § P; Howe’s Pract. 51 to 53
Roscoe’s Crim. Ev. 379. See also Matter of Shotwell, 10 Johns. R 304 But see Bird v. Bird, 2 Root, 411.