Pike v. Witt.

premises through the floor of the same, by means of a hole in the floor, used for throwing out slabs, and after the workman entered the premises as directed, by means of an axe which they brought with them for that purpose, assisted by their workman within the premises, removed the clasp from the doors, and entered the premises, and held them, excluding the plaintiff therefrom, and refusing to permit him to enter, use or occupy the same, although he demanded entrance thereto and claimed the right to use and occupy the same; that the defendants continued so to refuse entrance to, and use and occupancy of the premises, to the plaintiff until the date of the action and thereafterwards; that Gilson did not resist or offer to resist the entry of the defendants into the premises, otherwise than by refusing to deliver to them the key of the padlock; and that the defendants used or offered no language or acts of violence to Gilson, at the time of demanding the key and effecting the entrance into the premises."

The defendants offered evidence to prove that, before their entry, they and the plaintiff made an oral agreement to submit the question, whether they or the plaintiff were entitled to possession of the premises, to three designated arbitrators, and to abide by their award; that in pursuance of said agreement they and the plaintiff stated the question to the arbitrators; and that the arbitrators awarded that the plaintiff had no right to the use and occupation of the premises. But the judge excluded the evidence.

The defendants requested the judge to rule that the evidence in the case did not, as matter of law, prove a forcible entry or forcible detainer, by the defendants, of the premises, and to direct a verdict for the defendants; but the judge refused.

The case was submitted to the jury upon the following instructions as to what constituted a forcible entry and a forcible detainer, to which the defendants took no exception: "To con stitute a forcible entry which would support this action, the plaintiff must prove, by a preponderance of evidence, that the defendants entered the premises described in the declaration by actual force accompanied by an exhibition of means of apply. ing such force, or any other acts, demonstrations or declarations

Pike v. Witt.

indicating to the plaintiff's workman, in attendance there at the time, their purpose to forcibly enter the premises in spite of any resistance which it was his duty or disposition to make to such forcible entry, and calculated to overpower such disposition. Such acts, demonstrations or declarations must have been in the nature of menaces, by a show of persons appearing to take part in the purpose of entry, or a show of weapons or mechanical means sufficient to alarm said workman, and deter him from maintaining the plaintiff's occupation, because of apprehensions of bodily harm or force by the applications of the defendants to his own person. A forcible entry by merely mechanical force applied against the consent of the plaintiff or his agent there present would not be a forcible entry within the meaning of the law. If the jury find that there was a forcible entry or a forcible detainer, as thus defined, they will find for the plaintiff."

The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.

H. L. Dawes, (F. P. Brown with him,) for the defendants. S. W. Bowerman, for the plaintiff.

CHAPMAN, C. J. No fault is found, on either side, with the instructions given to the jury as to what constitutes a forcible entry, but they are conceded to be correct. The only question raised is, whether the evidence, as reported, is sufficient in law to authorize the jury to find the defendants guilty.

The premises consist of one room in a steam saw mill, which was in the occupation of the plaintiff, no person being in it, but it was left locked by a padlock, the plaintiff's workman being near the mill and in possession of the key The defendants owned the mill, and occupied the remaining part of it. It is admitted that the defendants entered the room, but it is denied that they entered forcibly. We need to consider the acts and language of the defendants separately and in connection with each other, and apply to them the instructions given to the jury.

It appears that the two defendants went to the mill, taking with them a workman. This of itself does not constitute the "multitude" or "unusual number" spoken of in the books,

Pike v. Witt.

which of itself tends to excite terror. They took with them an axe. But as this is a mechanical tool, rather than a weapon to be used in combat, the mere fact that one of three men carries an axe to a saw mill cannot be supposed to excite terror. There must be something in addition to the number of the men and the possession of the axe, to constitute the force mentioned by the learned judge, and this must consist of menace or act. The bill of exceptions states that there was no violence of language or act towards the plaintiff's workman who was at the mill. The defendants demanded of him the key; he refused to deliver it; and they said no more to him. Thus far, there was no force. They then directed their workman to enter the room through the floor by means of a hole used for throwing out slabs; and he entered accordingly. But it is not forci. ble to enter by drawing a latch or through an open door or window. Bac. Ab. Forcible Entry & Detainer, B. It cannot then be forcible to enter through a hole in the floor. Thus it appears that they directed their servant to enter without force, and he did so. His entry was their entry, and it was completed without force. The removal of a clasp or bolt afterwards, for the purpose of making ingress and egress easy, does not constitute such force as the instructions require to be proved. It amounted merely to mechanical force, applied against the consent of the plaintiff's agent, but not tending to alarm him or to excite apprehensions of bodily harm, and there is no evidence that he felt any alarm or apprehension. And the case finds that the axe was brought for the purpose of being used in removing the clasp. A majority of the court are of opinion that there is nothing in all these facts tending to prove the force required by the instructions to be proved.

The submission and award offered in evidence by the defendants were oral. They related to the right of the plaintiff under a lease for years of real estate, and could not be valid on that ground. Nor had such a defence been alleged in the answer The evidence was rightly excluded.

But on the ground that there was no evidence upon which the jury could legally find that there was a forcible entry, the Exceptions are sustained.

INDEX.

ABATEMENT.

See PLEADING, 1.

ACCIDENT.

See MISTAKE AND ACCIDENT.

ACTION.

1. One who places his horse and wagon in a street in a city transversely to the
course of the street, while loading articles which a city ordinance permits to
be loaded only in vehicles placed lengthwise and as near as possible to the
sidewalk, is not restrained by the mere fact of thus violating the ordinance
from maintaining an action against one who injures the horse by negligently
driving another wagon against it, when by exercising more care he might
have avoided doing so. Steele v. Burkhardt, 59.

2. A landowner in a city, who drains his premises by a private drain leading
from them under the adjoining street, has no right of action against the city
for merely opening a passage from the street down into the drain to conduct
off surface water. But if the city constructs and maintains the passage in
such a manner as in effect to adopt it, in connection with the drain, as a
common sewer, and by negligence in its construction or repair obstructs his
drainage, it is liable to him in an action at common law for the obstruction.
Emery v. Lowell, 13.

3. A declaration that the defendant, knowing J. S. to be a retailer of fluids to
be burned in lamps for illuminating purposes, and naphtha to be explosive
and dangerous to life for such a use, sold and delivered naphtha to him, know-
ing that it was his intention to retail it in his business; that, in ignorance of
its dangerous properties, he retailed a pint of it to the plaintiff to be burned in
his lamp for illumination; and that, while the plaintiff, in like ignorance, was
so burning it, it exploded and injured him and his property; sets forth a
good cause of action at common law. Wellington v. Downer Kerosene Oil
Co. 64.

4. The right of action given by the St. of 1867, c. 286, to "any person suffer-
ing damage from the explosion or ignition" of fluid unlawfully sold under
the statute, extends to injuries to property, and includes all persons to whom
any purchaser from such seller may give or resell it. Ib.

5. A declaration which, with sufficient allegations of the defendant's know!-
edge and the plaintiff's care, alleges that the defendat sold to J. S. naphtha

under the name of oil, contrary to the St. of 1867, c. 286; taat J. S. resold
it to the plaintiff, to be burned in a lamp for illuminating purposes; and
that, while the plaintiff was so burning it, it exploded and injured him and
his property; sets forth a good cause of action under the statute. Ib.
See ASSIGNMENT; ASSUMPSIT; CARRIER, 5 CONTRAct, 2; Evidence, 3;
INSURANCE, 1; JUDGMENT, 3-6; MORTGAGE, 3; PROMISSORY NOTE;
RAILROAD, 1-3; REPLEVIN; SALE, 6; SAVINGS BANK; SEDUCTION;
SHIPPING, 1; TOWN, TRUSTEE PROCESS; WArehouseman; Writ of
ENTRY.

AGENT.

See PRINCIPAL AND AGENT.

AGREEMENT.

See CONTRACT.

AMENDMENT.

See EXCEPTIONS, 2; SALE, 3; VARIANCE.

ANSWER.

See PLEADING, III.

APPORTIONMENT.

See DEVISE AND LEGACY, 2.

AQUEDUCT.

See WATERworks.

ARBITRAMENT AND AWARD.

A. sued B. for pulling down a wall built by A. in a lane. Pending the suit,
they agreed, under seal, that whereas there were differences between them
แ as to the ownership and use " of the lane, and B. claimed "an interest in
the fee" of the lane and also a right of way therein, and the suit was pend-
ing about the wall, and both were desirous of settling “all questions between
tnem touching their respective rights in and to the use of" the lane, they
would submit "all said questions, including said suit," to an arbitrator, and
aoide by his award. At the hearing before the arbitrator, B. offered evi-
dence to prove title in himself to the fee of the lane; A. denied this claim
of title; and the matter was made subject of argument. The arbitrator
awarded that A. had a right of way in the lane, and B. had no right of way
therein or to pull down the wall; and as referee under a rule of court in the
pending suit, he assessed damages against B. for pulling down the wall
Held, in a suit in equity brought by B. to avoid both awards, (the question
of jurisdiction being waivod,) that both should be declared void, for the