Neither title or right of possession is at issue, or can be made at issue:” Bouvier’s Law Die. (Rawle’s Rev.) 811; 2 Whart. Crim. Law (9th ed.), secs. 1104, 1108; Pennsylvania v. Lemmon, Add. 315; Burd v. Com., 6 S. & R. 252; Torrence v. Com., 9 Pa. 184; Vanpool v. Com., 13 Pa. 391; Com. v. Brown, 138 Pa. 447; People v. Rickert, 8 Cowen, 226; People v. Leonard, 11 Johns. 509; People v. Brinkerhoff, 13 Johns. 340.

"By the common law,” says Judge Roberts in his digest of British statutes in force in Pennsylvania, "one who has a right of entry into lands might enter with force and arms and detain his possession by force. This occasioned great inconvenience and frequent breaches of the peace. It afforded an opportunity to powerful men, under the pretense of feigned titles, forcibly to dispossess their weaker neighbors.” • English history records that such practices became alarmingly prevalent in the reign of Richard II, who, in 1377, when a lad of eleven years, without a guiding regency, succeeded to the English throne on the death of his grandfather, Edward III, which latter left his grandson a legacy of multiplied trouble through wars with France and Spain and Scotland. Furthermore, with an infant on the throne, the barons became discontented and truculent, the great nobles began to exploit their ambitions and inaugurate jealous quarrels, parliament grew at odds with the king and a realm-wide turbulence prevailed. "Hence” again says Judge Roberts, "it became, necessary by several statutes to restrain all persons from the use of such violent methods even of doing themselves justice;” and the first of such statutes was that of 5 Richard II, ch. 8, A. D. 1381, which provided:

“The penalty where any doth enter into lands when' it is not lawful, or with force: And also, the King defendeth, that none from henceforth make any entry into lands and tenements, but in case where entry' is given by law; and in such case not with a strong hand nor with multitude of people, but only in peaceable and easy manner. And if any man do to the contrary, and therefore be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the king’s will.”

This statute, as stated by Judge Roberts, provided no speedy remedy, but left the party to the common course of proceeding by indictment or action, nor did it contain any provision against forcible detainer. Consequently, ten years later (1391) was enacted the statute of 15 Richard II, ch. 2, which gave a summary remedy for a forcible entry. But it was not until 1429, 8 Henry VI, ch. 9, that a remedy was given for a forcible detainer; and not until 1623, 21 Jac. l, ch. 15, that the justices were empowered to award restitution.

Rex v. Smyth, 5 Car. & P. 201, 24 E. C. L. 279, was an indictment for forcible entry. Mrs. Smyth, the defendant, was the wife of the prosecutor, Carmichael Smyth, and on November 12, 1829, took a house separate from her husband; on November 17 her husband and his servant went to her landlord and through him. obtained possession of the house during the wife’s absence, and put a third person, Teresias, in possession; on November 18, Mrs. Smyth came to the house in company with two men and were refused admittance; one of the men, having broken a pane of glass, pushed down the upper sash of the window, got into the house, opened the door and Mrs. Smyth went in and told Teresias he had better go out peaceably, or they would put him out. Teresias went out leaving Mrs. Smyth and her party in possession. Lord Tenterben said in summing up: “An indictment for a forcible entry cannot be supported by evidence of a mere trespass, but there must be proof of such force, or at least such a show of force, as is calculated to prevent any resistance. In point of law, although Mrs. Smyth had taken the house separately from her husband, it must be taken as his house; but still she would have the right to enter the house of her husband. However, if you should think she came with violence and the strong hand, or at least such show of force as to prevent resistance, I think, as at present advised, she would be guilty of this offense, notwithstanding her being the wife of the party whose house this is alleged to be.”

Newton v. Harland, 1 Man. & Gr. 644, 39 E. C. L. 581, was trespass for forcible eviction of a tenant who remained in possession after expiration of term. Colt-man, J., said: “But it is said that a person who has a right of entry ought to enter peaceably. The true doctrine on this subject is stated, as I apprehend, correctly in Taylor v. Cole, 3 T. R. 292” (1 Smith’s Lead. Cas. 1347 et seq.) “where it is said: 'It is true, persons having only a right are not to assert that right by force; if any violence is used it becomes the subject of a criminal prosecution.’ So, in Taunton v. Costar, 7 T. R. 431, it is said: 'If the landlord had entered with a strong hand to dispossess the tenant by force, he might have been indicted for a forcible entry.’ . . . For the preservation of the peace, the law will punish for the forcible entry; but the tenant at sufferance being himself a wrongdoer, ought not to be heard to complain in a civil action for that which is the result of his own misconduct and injustice. The distinction between the civil rights of a person forcibly turned out of the possession of land, and the penal sanctions by which he is protected from being forcibly dispossessed, are drawn in a marked way in the cases in our old books relating to the statutes of forcible entry. Although by those statutes, all forcible entries were prohibited, even by those who had the title to enter, yet the party could maintain no action on the statutes. ... On these grounds I am of opinion that, although the defendant if guilty of a forcible entry, is responsible for it in the way of a criminal prosecution, yet that, as against the plaintiffs, who are wrongdoers and altogether without title, he has obtained by his entry a lawful possession, and may justify in a civil action the removing them, in like manner as in the case of any other trespasser.” Tindall, C. J., and Erskine and Bosanquet, JJ., concurred.

Harvey v. Brydges, 14 Mees. & Weis. (Excheq. 1845) 437, was an action of trespass for breaking a close vi et armis but not manu forti, and Park, B., said: “The next point was that raised in Newton v. Harland, 1 Man. & Gr. 644, and if it were necessary to decide it, I should have no difficulty in saying, that when a breach of the peace is committed by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not responsible to the other party.” See also Regina v. Studd, 14 L. T. (N. S.) 633.

In People v. Brinkerhoff, 13 Johns. 340, it was held that an indictment for forcible entry must set forth whether the estate of the prosecutor be a freehold or a term of years; but that indictment was under a statute providing that the act to prevent forcible entries and detainers should “extend as well to tenants for years and guardians, as to such as have estates of freehold,” which enumerated classes were alone within the scope of the statute. But in People v. Van Nostrand, 9 Wend. 50, the statute had been changed and required the prosecutor to show only “that he was peaceably in the actual possession of the premises at the time of a forcible entry;” and in that case the court said: “These new provisions very properly bring back the statute of forcible entry and detainer, among the most valuable of our remedial statutes, to the original intent and purpose for which the numerous English acts, of which our old statute was essentially a copy, were passed, to wit, to prevent individuals from doing themselves right by force, and to protect persons in the peaceable occupation of lands from a forcible dispossession without the authority of law: 4 Black. Com. 148; 1 Hawk. 274.” Substantially to' the same point is People v. Reed, 11 Wend. 160.

We do not understand Kerrains v. People, 60 N. Y. 221, 19 Am. Repr. 158, to be at variance with the preceding cases as to the matter then properly before the court for determination; similarly as to Noonan v. Luther, 206 N. Y. 105, 41 L. R. A. (N. S.) 761 and note; Presby v. Benjamin, 169 N. Y. 377, 57 L. R. A. 317. See Bourland v. McKnight, 4 L. R. A. (N. S.) 698, and extended subject note.

Napier v. Spielmann, 127 N. Y. App. Div. 567, holds that an action for forcible entry and detainer will not lie when the person ousted is a servant or mere licensee. Unquestionably this is correct on the facts and the nature of the proceeding and in harmony with all the cases upon the subject; the action was a civil one for the recovery of damages, and the employee was a wrongdoer in not having vacated the premises and was properly nonsuited. Our own case of Yoder v. Yoder, 239 Pa. 12, holds to the same purport.

The statute 5 Rich. II, ch. 8, was not reported by the judges as being in force in Pennsylvania, supposedly because it was considered as supplied by our own statute of 1700, 1 Smith’s Laws, 1, which provided as follows:

“Be it enacted, That whosoever shall violently or forcibly enter into the house or possessions of any other person within this province or territories, being duly convicted thereof, shall be punished as a breaker of the peace, and make such satisfaction to the party aggrieved as the circumstances of the fact will, bear.”

Under this statute the breach of the peace was the salient thing forbidden, sought to be guarded against and punished if committed, as clearly held in Pennsylvania v. Robison, Addison, 14 (1791), where the court said: “The possession may be in one, the right of possession in another, and the right in a third. . . . In ejectment, the right, and the right of possession come in question. In an indictment for a forcible entry, neither comes in question, but the possession only and the force. If one having the right, or right of possession, may support an ejectment, it follows not that he may enter' by force, or that no less possession than a rightful one, or such as would support an ejectment, is protected from a forcible entry. For, whatever right, either of property or possession, the man who makes the entry may have, he must not commit a crime in exerting it; and he commits a crime, punishable by indictment, if he enter with force, on a person having no right, not even of possession. ... It is not the degree or quantity of possession that constitutes the right of possession, but the manner in which the possession was obtained; and a possessor, without the right of possession, may be as c /mpletely possessed, as one who unites in himself possession, right of possession and right, and is equally protected against a forcible entry; though he would not recover, or would.be turned out in an ejectment.”

Overdeer v. Lewis, 1 W. & S. 90, was an action of trespass to recover damages for breakage of and injury to goods of the plaintiff done by the defendant in dispossessing the plaintiff after his lease had expired by its own limitation. The court said: “Now, as the defendant’s lease had expired by its own limitation, there could be no doubt that he was a tenant at will, though he had not received notice to quit and the landlord might forcibly dispossess him on the instant, by night or day, and for motives of mere caprice; with this limitation only, that he should use no greater force than might be necessary, and do no wanton damage.” The inference sought to be drawn in instances from this language of the court, was to the effect that the limitation of force to be used should be that ultimate degree measured by the maximum of resistance — a sort of force majeure. That to so infer is a fallacy cannot be reasonably questioned, and is convincingly shown by the reasoning of Judge Parsons in Com. v. Kensey, 2 Pars. 401, where he considers Overdeer v. Lewis, at length, and says that it would be a misapplication of the principle there decided, to say that it should govern in a prosecution for forcible entry; and p. 414, “It seems then to be clear that the lawfulness of the entry is not a ground of justification if the act was unlawful. The offense consists in the forcible manner in which the act is done, against the peaceable possession of one who occupies; it is a breach of the peace, and a crime against the public law. For that the accused must answer.” In Kellam v. Janson, 17 Pa. 467, Justice Lowrie, after discussing the case of Overdeer v. Lewis, says: “The legal remedies provided for such cases do not affect the right. They are necessary, because possession cannot always be properly assumed by the mere act of the claimant. In all such cases care must be taken that no public wrong be done by breach of the peace, and no private wrong by injuring the goods of the person in possession.”

It was stated upon the argument, and correctly, that the courts had more than indicated that proceedings for forcible entry were not favored. Undoubtedly the proceeding has been at times unjustifiably invoked; but where the proper elements exist, then, as said in People v. Van Nostrand, 9 Wend. 50, the statute of forcible entry is among the most valuable of our remedial statutes, to prevent individuals from doing themselves right by force, and to protect persons in the peaceable occupation of lands from forcible dispossession without authority of law. In Respublica v. Devore, 1 Yeates, 501, the court said: “Proceedings under these acts of parliament should be discouraged, unless the party charged has been guilty of an evident force. The laws were made for the security of persons in the actual possession of lands, which can scarcely be said of the prosecutor in the present instance.” Kramer v. Lott, 50 Pa. 495, is a case where a prosecution for forcible entry should have been and was “discouraged”; there it was held that breaking open the door of an unoccupied schoolhouse on the Sabbath Day for the purpose of having preaching services in it, was not indictable, but a trespass and nothing more. See also Pennsylvania v. Waddle, Add. 41; Pennsylvania v. Lemmon, Add. 315; Pennsylvania v. Leach, Add. 352; Thompson v. Com., 116 Pa. 155; Com. v. Brown, 138 Pa. 447.

The Act of March 31, 1860, P. L. 382, sec. 21, protects the “party in possession” from the forcible entry, and what the character of the possession is clearly defined in Pennsylvania v. Robison, Add. 14, and Com. v. Kensey, 2 Pars. 401.

The argument of the learned counsel for the defendant to the effect that the possession of the mill dwelling by Yohn as incident to his employment, was the possession of Everhart, the employer and owner, who, therefore, had never parted, with the possession, and when he made entry therein on July 1, 1913, in the manner he did, was only using a reasonable and necessary amount of force to retain that possession, and his act in that respect was one of protection of a then had possession, rather than an attempt to obtain a rightful possession, commands respect for the able counsel and excites the interest of the metaphysician, but — it is not convincing.

As to the second proposition and with regard to the criminal side of forcible entry:

That to constitute the offense there must be at least such acts of violence, or such threats, menaces, signs or gestures as may give ground to apprehend personal injury or danger in standing in defense of the possession, was said in Pennsylvania v. Robison, Add. 14, and numerous other cases. From this it was argued that, as the testimony showed that the defendants used no abusive or threatening language towards the inmates of the mill dwelling, and, having once entered, that they offered them no personal indignities, such inmates were not put in fear, had no grounds for apprehension of personal injury, hence there were no circumstances of terror and the necessary elements to constitute the offense were lacking. But, we take it, there need not be actual terrorization of the occupants of a dwelling to constitute the offense, as, independently of our statute of 1860, it is held that an entry by breaking doors or windows of a dwelling is a forcible entry, whether any person be in the house or not. The issue is: Was there force sufficient to alarm, so as to cause surrender of possession, or to provoke a breach of the peace: 2 Whart. Crim. Law- (9th ed.), sec. 1094. “An entry may be forcible not only in respect to the violence actually done to the person of a man, as by beating him if he refuses to relinquish possession; but also in respect of any other kind of violence in the manner of the entry, as by breaking open the doors of a house, whether any person be in it at the time or not, especially if it be a dwelling house: 1 Russ, on Crimes (8th Am. ed.), 308, citing 1 Hawk. P. C., c. 64, sec. 26. See also Pollen v. Brewer, 7 C. B. (N. S.) 371.

Unquestionably the purpose of the law to-day remains as anciently to preserve the peace and prevent breaches of it; and, as in times past there was opportunity to escape consequences under varied circumstances although the acts were extreme, the legislature of Pennsylvania determined to put an end to such miscarriages and clearly defined what should constitute the offense by the Act of March 31, 1860, P. L. 382, sec. 21,, to wit:

“If any person shall with violence and a strong hand enter upon or -into any lands or building^, either by breaking open doors, windows, or other parts of a house, or by any kind of violence, or other circumstances of' terror, or if any person after entering peaceably, shall turn out by force or threats, or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry,” etc.

This statute is explicit, the acts enjoined are mala prohibita, and he who shall, with violence and a strong hand, enter into any dwelling by breaking open a window, against the will of its occupant, defies its provisions and incurs its penalty. To hold that the facts established by undisputed testimony in this case amounted to no more than a trespass, would be to disregard the plain language of the act, do violence to its spirit and destroy its remedial purpose.

And now, to wit, January 19, 1914: There being no fact's in dispute which should be submitted to a jury the rule for a new trial is discharged, the motion in arrest of judgment is overruled and denied, and the defendants severally are directed to appear forthwith for imposition of sentence. Defendants except and bill sealed.

The court subsequently sentenced the defendants each to pay a fine of thirty-three and one-third cents and one-third of the costs of the prosecution. -

Errors assigned were various instructions and the judgment of the court.