that a trespasser or a person in possession as a wrong doer can recover against the owner of the fee, with right of possession. Such a rule would be an end to the enjoyment of property and its protection by judicial determination. It would be to hold that the actual possession however acquired, was paramount title.' The experience of the last twenty-five years in this city [Chicago] justifies the statement that also under it blackmail is lawful gain.' In White v. Naerup 22 he said: "This court has gone back to the common law, as held in Hoots v. Graham, 23 Ill. 81, that a trespasser or a person in possession as a wrong doer cannot recover against the owner of the fee with right of possession." § 57. Sustained by other judges: The four cases, where the opinions of the court were given by other judges, seem to back up the clear cut views of Judge Gary.23 In Chicago & W. I. R. R. Co. v. Slee,24 Judge Moran seems to have laid it down as law that in trespass qu. cl. fr. the right to possession alone is a good defence, making no qualification that the entry must be peaceable. In Eichengreen v. Appel,25 Judge Waterman said: "Proceeding with reasonable notice, in a reasonable manner and with no unnecessary rigor, as appellant did, appellee has no cause of action because appellant merely took what belonged to him and which appellee held without right." 26 In Mueller v. Kuhn 27 Judge Shepard said: "The principal vice in each of the instructions consists in the assumption of the first and the expression of the sixth that a landlord may not re-enter and retake possession of his premises withheld by a tenant in possession after the determination of a lease, except by process of law. It would put an end to the enjoyment of property to hold that trespass quare clausum fregit could be maintained against the owner, with right of possession, who merely takes possession of what is his own." § 58. Contrary to the rule of the supreme court: If the writer is correct in finding the doctrine of our supreme court to be that the right to possession is only a defence in trespass qu. cl. fr. when the entry of the defendant is peaceable as 22 57 Ill. App. 114, 118. 23 Ante, § 56. 24 33 Ill. App. 416. 25 44 Ill. App. 19, 20. 26 See also the remarks of the same learned judge in Mead v. Pollock, 99 Ill. App. 151, 154. 27 46 Ill. App. 496. distinguished from an entry with actual force and violence, 28 it is plain that the appellate court of the first district has tempered justice with mercy for the landlord or landowner. It apparently allows the one entitled to possession to use as much force as may be necessary up to the point of committing a breach of the peace. It would apparently regard the plea of liberum tenementum in the form given by Chitty 29 as a good defence. To this extent the rule of the appellate court in the first district is materially different from that of our supreme court. § 59. In trespass for assault and battery and de bonis asportatis: How the appellate court of the first district would hold when the action is for assault and battery or de bonis asportatis instead of quare clausum fregit cannot be known by any direct decision. There seems to be not much doubt but that Judge Gary would hold the defence of right to possession good, the plaintiff being left to recover if at all, under a replication alleging excessive force or perhaps a breach of the peace. In Ostatag v. Taylor 30 the learned judge says: "No trespass is committed in taking possession of one's own; we add, if an assault is committed in so doing, it may or not, be justifiable.' On the other hand Judge Shepard in Mueller v. Kuhn31 suggests the distinction recognized by the English cases that it is only in trespass qu. cl. fr. that the defence of right to possession is valid even when the entry is forcible. In that case the declaration contained counts in trespass for assault de bonis asportatis, and quare clausum fregit. The instructions were general and calculated to give the jury to understand that no entry could be made by one entitled to possession except by process of law. These instructions were held bad only because they led the jury to believe that, for the mere entry into the land, there was no defence and the judgment for the plaintiff was reversed because the jury might have given damages for the mere entry upon the land. The natural inference is that the court was by no means prepared to say that in trespass for assault and de bonis asportatis the defence of right to possession was valid under any circumstances, much less when the entry was forcible. 28 Ante, §§ 45, 51-53. 29 Ante, § 49. 30 44 Ill. App. 469, 470. § 60. Defence of leave and license: Our supreme court, having adhered to the view that sec. 1 of the forcible entry and detainer statutes of 1827 and 1872 prohibited all entry with actual force by him who had the right to possession, so that the one so entering was without defence in trespass qu. cl. fr., d. b. a., or for assault and battery, it remains to be inquired how far a plea of leave and license may be a good defence to an entry with actual force.2 If the forcible entry by one having the immediate right of possession be prohibited by statute, and if such statutory prohibition be based upon the injury to the public which arises from such entries, rather than upon the conferring of any benefit to the one wrongfully holding possession, on what ground can a plea of leave and license to a forcible entry be supported? It was very pertinently suggested by Judge Gary in Frazier v. Carruthers, that if the forcible entry and detainer statute probihits the entry then no plea of leave and license was good, because the parties should not by their agreement be allowed to permit that to be done which by a statute pro bono publico is prohibited. Yet nothing now seems clearer under the authorities in this state 5 than that such a defence is valid, and that, too, quite regardless of whether the plaintiff counts 1 Ante, §§ 48-50. 4 2 It is not believed that any proper distinction can be made between a license to enter with as much force as may be necessary and a license to expel and put out the occupant and his goods, using as much force as may be necessary. As we have seen, (Ante, § 54), the forcible entry or the peaceable entry and putting out of the occupant by force are within the prohibition of the Forcible Entry and Detainer statutes. Compare, however, Fifty Associates v. Howland, 5 Cush. (Mass.) 214. 3 Note that where, as in Massachusetts, they deny the forcible entry and detainer statutes any effect except to give a civil remedy for restitution, (ante, § 46) a plea of leave and license is unnecessary. A fortiori it is sufficient. 4 44 Ill. App. 61, 67. See also Marks v. Gartside, 16 Ill. App. 177, 179, where the plea in trespass set up leave and license to the landlord, who was defendant, to enter and repair. The Court suggested that under the Reeder v. Purdy (ante, §§ 48-50) doctrine such a plea was no defence to the entry by the defendant and could only go in mitigation of damages. 5 Ambrose v. Root, 11 Ill. 497; Page v. De Puy, 40 Ill. 506; Fabri v. Bryan, 80 Ill. 182; Mueller v. Kuhn, 46 Ill. App. 496; Schaeffer v. Silverstein, 46 Ill. App. 608; and Wetzel v. Meranger, 85 Ill. App. 457, may be cases of the same sort. in trespass for assault and battery, de bonis asportatis or quare clausum fregit.s The logical difficulty with this result is recognized in a curious way in French v. Willer. There the question was whether a power of attorney to confess judgment in a forcible entry and detainer suit was valid or not. The majority of the court argued that only the legislature could authorize such a proceeding, since it would be contrary to the mode of suit prescribed by the forcible entry and detainer statute. To this the three minority judges replied that if leave and license was a good defence to the forcible entry prohibited by the forcible entry and detainer statute there was no reason why the parties might not, by their agreement, so far alter the mode of suit prescribed by the statute as to make lawful the confession of judgment in an action of forcible entry and detainer. It may well be assumed that the retort of the majority of the court was that so far as the plea of leave and license was a defence to an offense against the public prohibited by the forcible entry and detainer statute its admission was illogical and anomalous and it should not be made the basis for a further anomaly. Perhaps the best ground for the rule that the plea of leave and license is good in trespass for a forcible entry is to be found in the illogical punishment which our forcible entry and detainer statute furnishes. Logically the entry should be made a crime and prosecuted as such, and the punishment by fine or imprisonment be exacted by the state. The one dispossessed should be restored to possession unless the one entering were entitled to it. This was the theory upon which the English statutes operated. Newton v. Harland broke the symmetry of these results and it is not inconceivable that the illogical step taken in that case might, in order to correct to some extent the first error, have led to the further illogical position that a plea of leave and license in trespass for assault and battery or d. b. a. is valid. So long, however, as 6 Ambrose v. Root, 11 Ill. 497. 7 Fabri v. Bryan, 80 Ill. 182; Mueller v. Kuhn, 46 Ill. App. 496. 8 Page v. De Puy, 40 Ill. 506; Fabri v. Bryan, 80 Ill. 182; Mueller v. Kuhn, 46 Ill. App. 608. 9 126 Ill. 611. 11 Scott, N. R. 474, 1 M. & G. 644; ante, § 46. 2 Cf. Kavanagh v. Gudge, 7 M. & G. 314. There is, however, a dictum in Edwick v Hawkes, 18 our forcible entry and detainer statutes punished the offence against the public by permitting the person entered upon to pocket the fine awarded in the shape of actual and punitive damages in an action of tort against the person forcibly entering-a remedy in form purely civil-it was not unnatural that the usual principles applicable to such suits should prevail. In short, if the forcible entry and detainer statutes, apart from restoring possession, did no more than give the one put out forcibly by him who had the right to possession, a civil remedy, why should not the plea of leave and license be good? § 61. How far equity will enforce a forfeiture: Where a forfeiture has been perfected the remedy at law for possession is adequate, and a bill in equity praying for a decree that the premises might be forfeited by reason of a breach of condition would seem to be improper1 If, however, the interest is forfeited and the one having the legal title has such possession, and the acts of him whose interest has been forfeited are such, that equity could grant relief, apart from any question of forfeiture, then the bill may lie. Thus, where the defendant had an easement over the plaintiff's land which was subject to forfeiture for breach of a condition subsequent, our supreme court declared the mere filing of a bill sufficient completion of forfeiture and then allowed the bill on the ground that it was filed to restrain repeated and continuous trespasses upon the complainant's land.2 Again, since the grantee or lessee, whose interest has been legally forfeited for breach of condition has a right in equity under some circumstances-especially when the forfeiture is for nonpayment of rent or money—to redeem from such forfeiture,3 no reason is perceived why, after a legal forfeiture, he may not file a bill to foreclose the right to redeem, just as a mortgagee files a Ch. Div. 199, 208, to the effect that a leave and license given by a tenant to his landlord to enter and "upon so entering to use all necessary force in putting out the plaintiff and his family" would be "void as being in effect a license to commit a crime" under the statute of Richard II. 1 Douglas v. Union Mutual Life Ins. Co., 127 Ill. 101, 116 (semble); Toledo, St. L. & N. O. R. R. Co. v. St. Louis & O. R. R. Co., 208 Ill. 623. 2 Lyman v. Suburban R. R. Co., 190 Ill. 320. 3 Post, § 66. |