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sons so indicted, to pay such costs and damages to the other party as Costs.
It hath been holden that the plea of such possession is good, without shewing under what title or of what estate such possession was; because it is not the title, but possession only, which is material in this case. 1 Haw. C. 64. § 56.
And it was holden by the court in Leighton's case, that if the Justice may defendant shall either traverse the entry or the force, or plead that summon a jury he has been three years in possession, the justice may summon a
for the traverse. jury for the trial of such traverse, for it is impossible to determine it upon view; and if the justice have no power to try it, it would be easy for any one to elude the statute by the tender of such a traverse, and therefore by a necessary construction the justice must needs have this power incidental to what is expressly given him. 1 Haw. c. 64. § 8.
And this traverse must be tendered in writing, and not by a bare denial of the fact in words ; for thereupon a venire facias must be awarded, a jury returned, the issue tried, a verdict found, and judgment given, and costs and damages awarded ; and there must be a record, which must be in writing, to do all this, and not a verbal plea. Dalt. c. 133. p. 309. I Haw. c. 64. § 58.
Upon which traverse tendered, the justice shall cause a new jury to be returned by the sheriff, to try the traverse ; which may be done the next day, but not the same day. Dalt. c. 133. p. 309.
And it seemeth he who tendereth the traverse shall bear the cbarges of the trial; and not the king or the party prosecuting. Id.
Ard by stat. 8 H. 6. c. 9. § 3. if such forcible entry or detainer 8 H. 6. c. 9. be found' (E) before such justice, then the said justice shall cause
F. to reseize (F) the lands and tenements so entered or holden, and shall restore the party put out to the full possession of the same.
It seems to be agreed that no other justices of the peace, except Same justice those before whom the indictment shall be found, shall have any to restore. power, either at the sessions or out of it, to make any award of restitution. 1 Haw. c. 64. § 50.
And the justice may break open the house by force to reseize May break open the same; and so may the sheriff do, having the justice's warrant. doors. Dalt. c. 44. p. 98.
Reseize.] . That is, shall remove the force, by putting out all such offenders as shall be found in the house, or upon the lands, that entered or held with force. Dalt. c. 130. p. 304.
And shall restore the party put out.] And this he may do in his own proper person; or he may make his warrant to the sheriff to do it. Dalt. c. 44. 1 Haw. c. 64. g 49.
And by stat. 21 J. 1. c. 15. it is enacted, that such judges, justices, 21 J. 1. c. 15. or justice of the peace, as may give restitution unto tenants of any To what estates. estate of freehold, may give the like unto tenants for term of years, tenants by copy of court roll, guardians by knight's service, tenants by elegit, statule merchant and staple, of lands or tenements by them 80 holden, which shall be entered upon by force, or holden of them by force.
On certiorari court above may restore.
Where a con. viction of forcible entry is quashed, the court must award restitution.
VI. yow punishable on a Certiorari. Although regularly the justices only who were present at the inquiry, and when the indictment was found, ought to award resti, tution, yet if the record of the presentment or indictment shall be certified by the justice or justices into the K. B., or the same presentment or indictment be removed or certified thither by certio. rari, the justices of that court may award a writ of restitution to the sheriff, to restore possession to the party expelled; for the justices of the K. B. have a supreme authority in all cases of the
Dalt. C. 44. p. 98. Also where upon a removal of the proceedings into the K. B. the conviction shall be quashed, the court will order restitution to the party injured. As in the case of R. v. Jones, 1 Str. 474., a conviction of forcible entry was quashed for the old exception of messuage or tenement, by reason of the uncertainty: but the resti. tution was opposed on an affidavit that the party's title (which was by lease) was expired since the conviction. But the court said, they had no discretionary power in this case, but were bound to award restitution on quashing the conviction.
VII. How punishable as a Riot. If a forcible entry or detainer shall be made by three persons or more, it is also a riot, and may be proceeded against as such, if no inquiry hath before been made of the force. Dalt. c. 44. p. 99.
A. Indictment for a forcible Entry and Detainer. County of THE jurors for our lord the king upon their oath
present that A. I. late of the parish of - in the county aforesaid, gentleman, on the day of in the year of the reign of, was possessed of a certain messuage, with the appurtenances, situate, lying, and being in in the parish aforesaid, in the county aforesaid, for a certain term of years, then and still to come, and unexpired, and being so possessed thereof, one A. 0. late of said county, yeoman, afterwards, to wit, the said day of
in the year aforesaid, into the same messuage, with the appurtenances aforesaid in aforesaid, in the parish and county aforesaid, with force and arms, and with strong hand (a), unlawfully did enter, and the said A. I. from the peaceable possession of the said messunge, with the appartenances aforesaid, then and there with force and arms, and with strong hand, unlawfully did expel and put out, and the said A. I. from the possession thereof, so as aforesaid, with force and arms, and with strong hand, being unlawfully expelled and put out, the said A. O. him the said A. 1. from the aforesaid day of aforesaid, until the day of the taking this inquisition, from the pos
in the year
(a) These words are not necessary in an indictment for forcible entry at common law. They are added in indictments on the statute, because the statute uses them. Say. 225. But enough must appear upon the indictment, to shew that it
not a common trespass. R. v. Wilson and others, 8 T. R. 357. Antè,
session of the said messuage, with the appurtenances aforesaid, with force and arms, and with strong hand, unlawfully and injuriously then and there did keep out, and doth still keep out, to the great damage of the said A. 1. against the peace of our said lord the king, and against the form of the statutes (a) in that case made and provided.
Note. - If it is a freehold, then the party must be said to be seised thereof in his demesne as of fee; and consequently he must be thereof disseised: otherwise it is of a lesser estate, of which he is not properly said to be seised, but possessed thereof at the will of the lord, according to the custom of the manor, or the like, and then he must be expelled, ejected, amoved, or the like.
B. Record of a forcible Detainer upon View. Note. — The books upon the office of a justice of the peace generally set forth that the record ought to be in the present iense, and not in the time past, (and herewith do accord the adjudged cases in the court of K. B.); yet nevertheless they all exhibit the form of a record in the time past, and not in the present. (1 Str. 443.) Therefore I have taken the liberty to alter the same from the record in Ld. Raymond of the conviction of Sir Edni. Elwell and others (see antè, p. 231.); adding the fine thereunto, for the want of which that conviction was quashed. And I have given the form of a record of a forcible detainer rather than a forcible entry, because the justice for the most part cannot be supposed to be present at the entry, as not having knowledge thereof till after the entry is made. Kent,
membered, that on the of in the to wit,
year of the reign of our sovereign lord William, &c. at Beckingham, in the county of Kent aforesaid, Eliz. Elwell complaineth to us Sir E. Bettenson, baronet, P. Burrell, and W. Passenger, esquires, three of the justices of our said lord the king assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, that Sir Edm. Elwell, late of London, baronet, Joseph Billers, late of and Daniel Monty, late of
into the messuage of her the said E. E., being the mansion house of her the said E. E., called Langley House, situate within the parish of Beckingham aforesaid, did enter, and her the said E. É. of the messuage aforesaid, whereof the said E. E. at the time of the entry aforesaid was seised as of the freehold of her the said Ě. E. for the term of her life, unlawfully ejected, expelled, and amoved, and the said messuage from her the said E. E. unlawfully, with strong hand and armed power, do yet hold and from her detain, against the form of the statute in such case made and provided ; whereupon the same E. E. then, to wit, on the said 15th day of Sept. at the parish of B. aforesaid, prayeth of us, so as aforesaid being justices, to her in this behalf that a due remedy be provided, accord
(a) Though the indictment conclude contra formam statuti, these latter words may be rejected, if the indictment be good as an indictment at common law. Say. 225. But if the indictment be upon the state and bad as such, Qu. if it can be good at common law by rejecting the above words ? See R. v. Wilson, antè,
ing to the form of the statute aforesaid ; which complaint and
C. Mittimus for forcible Detainer.
our sovereign lord the king, assigned to keep the
in the said county, yeoman, I went immediately to the dwelling house of the said A. I. 'at - aforesaid in the said county, and there found A. O. late of labourer, B. 0. late of the same, weaver, and C. O. late of - butcher, forcibly with strong hard and armed power holding the said house, against the peace of our said lord the king, and against the form of the statute in such case made and provided : Therefore I send you, by the bringers hereof, the bodies of the said A. Ö., B. O., and C. O., convicted of the said forcible holding, by mine own view, testimony, and record; commanding you in his said majesty's name to receive them into your said gaol, and there safely to keep them, and every of them respectively, until they shall have respectively paid the several sums of Tol. of good and lawful money of Great Britain to our said sovereign
lord the king, which I have set and imposed upon every of them separately, for a fine and ransom for their said trespasses respectitely. Herein fail you not, at the peril that may follow thereof. Giren at aforesaid, in the county aforesaid, under my seal, the — day of in the
year of the reign of our said sorereign lord king William the fourth.
Note.— By the forms in all the books, all the offenders stand committed until all have paid, so as that the first shall not be dis. charged on payment of his own fine, but continue until all the rest have paid likewise; which seems unreasonable, and is not warranted by the statute. See antè, p. 231.
D. Precept to the Sheriff to return a Jury.
of our lord the king, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, to the sheriff of the said county, greeting : On behalf of our said lord the king, I command you that you cause to come before me at in the county aforesaid, on the day of nert ensuing, twenty-four sufficient and indifferent men, of the neighbourhood of
aforesaid, in the county aforesaid, every of whom shall have lands or tenements of 40s. yearly at the least, above reprizes, to inquire upon their oaths for our said lord the king, of a certain entry made with a strong hand (as it is said) into the messuage of one A. I. - aforesaid, in the county aforesaid, against the form of the statute in such case made and provided. And you are to return upon every of the jurors by you in this behalf to be impannelled 20s. of issues at the aforesaid day. And have you then there this precept. And this you shall in nowise omit, upon the peril that shall thereof ensue. Witness the said R. W. at
in the county aforesaid, the day of - in the
year of the reign of
The Juror's Oath.
as shall come before you, concerning a forcible entry (or detainer) said to have been lately committed in the dwelling house of yeoman, at
in this county ; you shall spare no one for favour or affection, nor grieve any one for hatred or ill-will, but proceed herein according to the best of your knowledge, and according to the evidence that shall be given to you: So help you God.
The oath that A F. your foreman hath taken on his part, you and every of you shall truly observe and keep on your parts : So help
E. The Inquisition,* Indictment, or Finding of the Jury. County of } AN inquisition for our sovereign lord the king, indented and taken at
in the said county, the day of in the
year of the reign of by the oaths of - - good and lawful men of the said county, before J. P. esquire, one of the justices of our said lord the king, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in