On each offender severally. Discharge of offenders on payment, &c. 8 H. 5. c. 9. And the fine must be assessed upon every offender severally, and not upon them jointly; and the justice ought to estreat the fine, and to send the estreat into the exchequer, that from thence the sheriff may be commanded to levy it for H. M.'s use. Dalt. c. 44. p. 97. But upon payment of the fine to the sheriff, or upon sureties found (by recognizance) for the payment thereof, it seemeth that the justice may deliver the offenders out of prison again at his pleasure. Dalt. c. 44. p. 97. And so much concerning removing the force: But the party ousted cannot be restored to his possession by the justice's view of the force, nor unless the same force be found by the inquiry of a jury. Concerning which it is by stat. 8 H. 6. c. 9. § 3. enacted as folRestitution of lows:-And though that the persons making such entry be present, or else departed before the coming of the justice, he may notwithstanding in some good town next to the tenements so entered, or in some other convenient place by his discretion (and that though he go not to see the place where the force is [Dalt. c. 44.]) have power to inquire by the people of the county, as well of them that make such forcible entry, as of them which hold the same with force. party ousted. D. On inquest. Mode of pro ceeding. Defendant ought to be called to answer, and may traverse. 31 Eliz. c. 11. No restitution to be made if the party in dicted hath been three years in § 4, 5. In order to which, the justice shall make his precept (D) to the sheriff, commanding him in the king's behalf to cause to come before him, sufficient and indifferent persons dwelling next about the lands so entered, to inquire of such entries; whereof every man shall have lands or tenements of 40s. a year above reprizes. And the sheriff shall return issues on every of them, at the day of the first precept returnable 20s., and at the second day 40s., and at the third day 100s., and at every day after double. the sheriff making default shall, on conviction before the same justice or before the judge of assize, forfeit 201.; half to the king, and half to him who shall sue, with costs; and moreover shall make fine and ransom to the king. And And the justice may proceed against the sheriff for this default, either by bill at the suit of the party, or by indictment at the suit of the king. Dalt. c. 44. p. 99. And the defendant also, if he be not present, ought to be called to answer for himself; for it is implied by natural justice in the construction of all laws, that no one ought to suffer any prejudice thereby, without having first an opportunity of defending himself. 1 Haw. c. 64. § 60. And it seems to be settled at this day that if the defender tender a traverse of the force, the justice ought not to make any restitution, till the traverse be tried. R. v. Bengough, 3 Salk. 170. The defendant may also by stat. 31 Eliz. c. 11. plead three years' possession; whereby it is enacted, that no restitution upon an indictment of forcible entry, or holding with force, be made to any person or persons, if the person or persons so indicted hath had the occupation, or hath been in quiet possession by the space of three quiet possession, whole years together next before the day of such indictment so found; and his, her, or their estate or estates therein not ended or determined; which the party indicted shall and may allege for stay of restitution, and restitution to stay until that be tried, if the other will deny or traverse the same; and if the same allegation be tried against the same person or persons so indicted, then the same person or per and his estate not ended. 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 defendant shall either traverse the entry or the force, or plead that he has been three years in possession, the justice may summon a 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. 1 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 all the charges of the trial; and not the king or the party prosecuting. Id. Justice may summon a jury for the traverse. E. And 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 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. F. 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. 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. § 49. doors. 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 so holden, which shall be entered upon by force, or holden of them by force. On certiorari court above may restore. Where a conviction of forcible entry is quashed, the court must award restitution. Riot. A. VI. How punishable on a Certiorari. Although regularly the justices only who were present at the inquiry, and when the indictment was found, ought to award restitution, 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 certiorari, 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 crown. 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 restitution 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 ofthe county aforesaid, gentleman, on the in } year of the reign of in day of in the was possessed of a certain messuage, with the appurtenances, situate, lying, and being 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. O. late of said county, yeoman, afterwards, to wit, the said in the 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 messuage, with the appurtenances 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. I. from the aforesaid day of in the year aforesaid, until the day of the taking this inquisition, from the pos (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 was not a common trespass. R. v. Wilson and others, 8 T. R. 357. p. 227. 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. I. 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 tense, 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 Edm. 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, {BE it remembered, that on the of in the to wit. 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. E. 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 É. 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 stat. and bad as such, Qu. if it can be good at common law by rejecting the above words? See R. v. Wilson, antè, p. 227. B. C. ing to the form of the statute aforesaid; which complaint and C. Mittimus for forcible Detainer. County of EDWARD Hassel esquire, one of the justices of of} our sovereign lord the king, assigned to keep the peace within the said county of W., and also to hear and determine A. I. dwelling house of the said A. I. at aforesaid in the said county, and there found A. O. late of labourer, B. O. late of the same, weaver, and C. O. late of butcher, forcibly with strong hand 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. O., 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 10l. of good and lawful money of Great Britain to our said sovereign |