CHAP. IV. SUMMARY PRO suggested the best course of proceeding in ordinary cases, to regain possession of a house and land, and how a party may CEEDINGS, &c. safely act in taking or retaking possession, without the assistance of a justice. (a) If it should appear that possession cannot be obtained with- Prevention of out the risks to which we have adverted, then if the title be waste, pending legal proceedlegal, an action of ejectment must be prosecuted; or if equit- ings. able, then a Court of Equity must be resorted to; and in the mean time, if it be apprehended that waste or wasteful trespasses, such as cutting trees, digging mines, &c., are about to be committed or repeated, then we have seen that a bill in Chancery should be immediately filed, and the Court moved, and within a few days an injunction to prevent injury may in general be obtained. (b) justices, in cases of forci ble entry and detainer. But we are now to consider the very important summary Jurisdiction of jurisdiction of justices in cases of forcible entry or forcible detainer. This, we have seen, is founded entirely on the statute law, viz. 5 Ric. 2. c. 8, 15 Ric. 2. c. 2, 8 Hen. 6. c. 9, 31 Eliz. c. 11, 21 Jac. 1. c. 15; the latter of which principally extends the summary remedy to copyholders and tenants for years. The material parts of those acts are stated and commented upon in Burn's Justice, title Forcible Entry and Detainer; but as there are some observations in that in general accurate work, calculated to mislead, we will here take a concise view of at least some of the most important parts of this subject. There are two descriptions of forcible ousters, which are perfectly distinct from each other, viz. 1st, a forcible entry and expulsion, with a continuance of similar force; and 2dly, a forcible detainer, where the previous entry was not forcible, but illegal. It would here be beyond our inquiry to consider who may or not be guilty of a forcible entry or detainer. The general rule is, that all persons compos mentis, and who might in fact commit any crime, may be guilty of this offence; and that consequently an infant, or even a married woman, (c) may be liable to be proceeded against summarily by a justice. But in general mere subsequent assent to a forcible entry, although for the party's use, would not subject him to such a criminal (a) Ante, 1 Vol. 646, 7. (b) See Ex parte Clegg, ante, 1 Vol. 723, 4, 726, 7. (c) R. v. Smyth and others, Mood. and Robinson's Rep. 155, and even by for- SUMMARY PRO CHAP. IV. proceeding. (d) To constitute a forcible entry, or a forcible CEEDINGS, &c. detainer, mere force in law, as it is technically termed, being a simple trespass, is not sufficient, but there must be some actual violence, or some proceeding, as a large assembly of persons, calculated to create alarm, if not terror, in ordinary minds, though it is not necessary that there should be any assault or battery. (e) Forcible en ble detainers after suck entries. With respect to Forcible Entries, followed or not by contitries, and forci- nued forcible Detainer, all the above statutes apply. The 5 Ric. 2. c. 8, defines and prohibits forcible entries, and the 15 Ric. 2. c. 2, gives jurisdiction to one or more justices. It enacts, that one or more justices shall, upon complaint, (and which it seems may be by any one, though not aggrieved, (ƒ)) go to the premises, "and if he or they find any that hold "such place forcibly after such (i. e. forcible) entry made, they "shall be taken and put to the next gaol, there to abide con"vict by the record of the said justice or justices, until they "have made fine to the king;" and the statute requires all persons to aid and assist the justice in his proceeding. Under this act, and according to the present law, if the justice, when at the premises, do not actually have view of any continuing force, he cannot proceed; and supposing that the parties have been guilty of a previous forcible entry, but the continuance of force has ceased, it should seem that they can only be punished by indictment at the sessions or assizes, or a jury must be impannelled to try the forcible entry under the 8 Hen. 6. c. 9. s. 3. This may be collected from the terms of the act, 15 Ric. 2. c. 2, and from the authorities, which state that "if such offenders "being in the house at the coming of the justice shall make no "resistance, nor make shew of any force, then the justice himself "cannot arrest or even remove them at all upon such view," (g) though if the force be found afterwards by the inquiry of the jury, under the 8 Hen. 6. c. 9. s. 3, then the justice may bind the offenders to the peace; and if they be gone, he may make his warrant to take them, and may after send them to the gaol until they have found sureties for the peace. (h) But this power of committing a party upon a subsequent finding, and otherwise (d) Hawk. P. C. ch. 64, s. 24; Co. Lit. 199 b, 200 a. (e) Hawk. P. C. ch. 64, s. 20, to s. 29; Comyn's Digest, title Forcible Entry, A.3; R. v. Wilsım, 8 Term Rep. 357; Milner v. Macham, 2 Car. and Pa. 17. (f) Lamb. 147. (g) Dalt. Just chap. 44; and see 8 Hen. 6, c. 9, s. 3, which implies that unless the justice himself view the force, he cannot restore possession. (h) Dalt. Justice, ch. 44. SUMMARY PRO than upon the justice's own view, seems questionable. (i) If CHAP. IV. upon the justice's arriving at the premises, the doors be shut, CEEDINGS, &c. and those within the house should deny the justice to enter, he may order an outer door to be broken open in his presence, and may enter to remove the force; (k) and if after such entry has been made, the justice shall find such force, he shall cause the offenders to be arrested, and shall also take away their weapons, it is said also their armour, and cause them to be appraised, and after to be answered to the King as forfeited, or the value thereof. (1) If the justice himself should have actual view of the force continued in his presence, then he is to draw up within a reasonable time, his record, and fix a fine separately upon each offender, (m) and issue his warrant of commitment unless such fine be paid; (m) or unless the defendant traverse the force, in which case a jury is to be impannelled, and who must find the same original forcible entry, and the justice's view of its continuance. (n) If the defendant traverse the force, then until the jury have found their verdict confirming the finding of the justice, he is not to restore possession. (0) And before the jury, the party claiming restoration of possession would not be a competent witness. (p) If there should be no continuance of the force in the view of Proceedings, in case there is no the justice, then, as we have seen, he could not restore posses- continuance of sion; and therefore it was found that many offenders took care to avoid all appearance of force in the presence of the justice, and thereby still maintained their possession, and ousted the party injured of his summary remedy. To prevent that injustice, the (i) Hawk. P. C. ch. 64, s. 8. (k) Dalt. J. ch. 44. (4) Dalt. Justice, c. 44. In a case fully advised upon, by Sir Vicary Gibbs and Mr. Serjeant Shepherd, where a lessee held over after he had forfeited his lease by several breaches of covenant, and was committing waste after notice of his forfeiture and demand of possession, an active justice of the peace for the county of Essex, with two regular constables, in strict observance of those opinions, went to the premises, and after stating that he was a justice of the peace for the county, and that the lease was forfeited, and the right to possession vested in the landlord, demanded admittance; and being refused, the justice then stated the substance of the enactment, subjecting persons guilty of a forcible detainer to fine and imprisonment, and giving power to a justice to deliver possession to the landlord; whereupon a person (m)_2 Stra. 794; R. v. Ellwell, 2 (n) 3 Salk. 169. (0) Id. ibid. (p) R. v. Williams, 9 B. and C. 549; R. v. Bevan, R. and M. N. P. Cases, 242. the force in view of the justice. 236 CHAP. IV. SUMMARY PRO- Forcible detainers. subsequent act, 8 Hen. 6. c. 9. s. 3 & 4, enacts, "And moreover though such persons making such entry be present, or "else departed before the coming of the said justices or jus❝tice, nevertheless the same justices or justice shall have au"thority and power to inquire, by people of the same county, as well of them as make such forcible entries, as also of them "that holdeth with force, and the jury shall find that the par"ties had offended against the statute, then the justice shall 66 put them out, and restore the person forcibly disseised." 66 2. Forcible Detainers.-Before the 8 Hen. 6. c. 9. s. 2, there was no summary remedy to obtain the restoration of possession, unless there had been a forcible entry; though in one case it was held that a peaceable entry during the short absence of the occupier, and then upon his quick return excluding him, was equivalent to a forcible entry. (q) But it was found that many cases of forcible detention occurred, which equally required summary legal redress; as where the parties who committed the forcible entry afterwards quitted, and either sold or peaceably gave up the possession to a different person, who entered; or a party intruded into land or buildings during the absence of the owner or occupier; or, as Hawkins supposes, where a lessee wrongfully held over after the expiration of his lease. It was formerly supposed, and it should seem correctly so, as respects a mere case of holding over, that cases of that description did not require such immediate summary assistance, because there had not been any actual breach of the peace committed by the present wrong-doer in taking possession, as in the case of a forcible entry, nor was his continuance in possession necessarily any actual breach of the peace by him; because, unless the true owner should himself attempt to resume possession otherwise than by legal process, no force would be used, even when arms were kept in the house by the party for the protection of the occupier, or even for forcibly retaining possession. The statute 8 Hen. 6. c. 9. s. 1, nevertheless, certainly principally having in view cases of forcible entry, and of the party guilty of it handing over the possession to a third person, after reciting, "and for that the said statute (alluding to the 15 Ric. 2. "c. 2), doth not extend to entries in tenements in peaceable 66 manner, and after holden with force; nor if the persons "which enter with force into lands and tenements be removed "and avoided before the coming of the justice, and that in (7) 1 Russ. Crim. L. 287; Hawk. ch. 64, s. 26. "consequence many wrongful and forcible entries be made, "&c." (r) then enacts, "that the statute shall extend to per"sons holding forcibly, and that upon complaint of the party "aggrieved, the justices or justice shall cause the statute to be "executed at the costs of such party grieved." But this statute throughout appears to refer either to cases where a previous forcible entry had been committed by some one, or at all events to a case where the wrong-doer, alleged to be guilty of the forcible detainer, was at the same time wrongfully and illegally in possession, and the statute, s. 7 (afterwards enforced by 31 Eliz. c. 11. s. 2), expressly precludes the justices from acting, when the person forcibly detaining has been in possession continuously for three years. The construction of this act in Burn's Justice, title Forcible Entry and Detainer, VI., has tended to mislead; for it is there laid down "that even in cases of forcible detainer, the justice "is, upon complaint of the party grieved, (without any exa"mining or standing upon the right or title of either party,) "to take sufficient power of the county and go to the place "where such force is made, and &c." This position, in its ap plication to forcible entries, is perfectly correct, because no man ought to assert a claim in so violent a manner; and in that case his right is not to be inquired into; (s) but in its application to a mere alleged forcible detainer, it is decidedly incorrect. If it were sustainable to its full extent, then if any party should think fit to claim the possession of a house in the lawful occupation of another, and the occupier, confident in his own just right, should refuse to deliver it, and actually defend the same, then any justice might be required to go to the place and request the occupier to give up possession; and if the latter should refuse to quit, and fasten all the outer doors, the justice might treat him as an offender, and fine and commit him to prison, and give possession to the claimant, although he had no pretence of title. This would be a most dangerous jurisdiction, especially if, as supposed by Dr. Burn, the justice is not to inquire or consider the right or title of either party; and yet, according to the doctrine referred to, a justice would be bound, without inquiring into the title, to turn out every person so exceedingly uncivil as not to quit instantly upon the justice's request. Neither could (r) Semble, that these and other words in 8 Hen. 6, c. 9, import strongly that the principal, if not the only object of the act, was to provide for cases where originally there had been a forcible entry. The authorities, however, have given a more extensive construction, and (s) Per Vaughan, B. in R. v. Wil- CHAP. IV. SUMMARY PRO CEEDINGS, &c. |