Remedy by

JUSTICES OF

PEACE Out of

dess.0115.

Upon view.

"convict (that is, by the common course of proceeding by in "dictment or the like), he shall be punished by imprisonment ❝ of his body, and therefore ransomed at the king's will."

And by 8 Ilen. 6. c. 9, "The justices of counties, and the <6 mayors or justices of peace, sheriffs and bailiffs of boroughs, "shall have power to inquire by the people of the county, as "well of them that make such forcible entries into lands or "tenements, as of them which the same hold with force." s. 3, 6.

It is sufficient in the caption of such indictment, to say, jus tices assigned to keep the peace of our lord the king, without showing that they have authority to hear and determine felonies and trespasses; for the statute enables all justices of the peace, as such, to take such indictments. Palmer, 277. Cro. Jac. 633, 1 Hawk. c. 61. s. 36.

And the tenement in which the force was committed must be described with convenient certainty, for otherwise the defendant will neither know the special charge, to which he is to make his defence, neither will the justices or sheriff know how to restore the injured party to his possession. Huwk. c. 61,

5.37.

The statutes also seem to require, that in the indictment, the entry must be laid with strong hand (manu for'i), or multitude of people (cum multitudine gentium); and that without these, the statute is not pursued; but some have held, that equivalent words will be sufficient, especially if the indictment concludes, against the form of the statute; but it is not sufficient to say only, he entered with force and arms, since that is the common allegation in every trespass. 1 Hawk.c. 64. s. 41. 3 Burrows, 1698, 1703.

It hath also been resolved, that an indictment of a forcible detainer, without showing that the defendant made an entry into the same lands, is not good, because the statute doth not prohibit one who hath always been in possession, to maintain the same with force. 1 Hawk. c. 64. s. 40.

So it also ought to show, what estate he had in the land where the entry was made. Comyn's Dig. Forc. Ent. (D 4.)

And no indictment can warrant an award of restitution, unless it and that the wrong doer both ousted the party grieved, and also continued his possession at the time of the finding the indictment; for it would be a repugnancy to award restitution,. to one who was never in possession; and vain to award it to one who doth not appear to have lost it. 1 Hawk, e. 61. s.

41.

(3.) Also the party so grieved, for a more speedy remedy,' may complain to any one justice; or to a mayor, sheriff, or bailiff of a franchise, under the following acts, viz. By 15 Ric. 2. c. 2, and 8 Hen. 6. c. 9, make forcible entry into lands, tenements, or other posses

Where any doth

❝sions, or them hold forcibly, after complaint thereof, com. "eth to the justices of peace, or to one of them, the same justi"ces or justice shall (within a convenient time, at the costs of "the party grieved, 8 Hen. 6. c. 9. s. 2) take sufficient power "of the county, and go to the place where such force is made. "And if they find any that hold such place forcibly, they "shall be taken and put in the next gaol (11), there to abide "convict by the record (II) of the justices or justice, till "they have made fine and ransom to the king. 15 Ric. 2. c. 2.

(II) The form of a mittimus for a forcible detainer.

Monmouthshire. }

JJ, esquire, one of the justices of our sovereign lord the king that now is assigned to keep the peace of our said sovereign lord the king in and for the said county of M, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, to the keeper of his majesty's gaol, at in the said county, and to his deputy and deputies there, and to every of them, greeting: Whereas upon complaint this day made unto me by P G, of in the said county, yeoman, I the said justice did immediately go to the dwelling house of the said P G, at aforesaid, in the county aforesaid, and there found upon mine own view, F O, late of labourer, SO, late of the same place, labourer, and T 0, late of, tyler, 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 FO, SO, and T 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 respecttively, until they shall have respectively paid the several sum of 101. of good and lawful money of Great Britain, to our sa d soś vereign lord the king, which I have set and imposed upon every of them separately, for a fine and ransom for their said tres, passes respectively. Herein fail not, on the pain that will there on ensue. Given at aforesaid in the county aforesaid, day of in the

under my hand and seal the

year of the reign of our said sovereign lord king George the Third.

(III) The form of a record of a forcible detainer upon view, from 3 Ld. Raym. 360.

Monmouthshire

to wit.

}

BE it remembered that on the fifteenth

day of September, in the first year of the

"And all they of the county, as well the sheriff as other, "shall attend upon the justices, to assist them to arrest such "offenders; upon pain of imprisonment, and to make fine to the “king.”. 15 Ric. 2. c. 2.

After complaint thereof.] These words do not enforce any necessity of such a complaint; for it is holden, that the justice may and ought to proceed, upon any information or knowledge thereof whatsoever, though no complaint at all be brought unto him by any party grieved thereby. Lambarde, 147.

To the justices of the peace, or to one of them] Although one

reign of our sovereign lord George the second, of Great Bri tam, France and Ireland, king, defender of the faith, and so forth; at Beckenham in the county of Kent aforesaid, Eliz. Elwell complains to us E B, P B, and W P, 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. Eiwell, late of London, bart, JB, late of and D M. late of into the messuage of her the said it, being the mansion-house of her the sa a E E, called Langley-house, situate within the parish of Becking bam aforesaid, did enter, and her the said E E, of the messuage aforesaid, whereof the same EE, at the time of the entry aforesaid, wis seised as of the freehold of her the said EE, for the term of her life, unlawfully ejected, expelled, and amoced, and the said messuage from her the said E E, unlazfully, 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 she the said EE, then, to wit, on the saw fifteenth day of September, at the parish of B aforesaid, pray th of us so as aforesaid being justices, to her in this be half, that a due remedy be provided according to the form of the statute aforesaid, which complaint and prayer by us the aforesaid justices be ng hurd, we the aforesaid E B, P B, and W P, e quire, justices ajor said, to the messuage aforesaid personally have come, and do then and there find and see the aforesa E E, I B, and D.M, the aforesaid messuage with force and arms, unlawfully, with strong hund and armed power detaining, against the form of the statute in such case mude and provided, according as she the said E E, so as aforesaid hatḥ unto us complained: Therefore it is considered [and adjudged] by us the aforesaid justices, that the aforesaid E E, JB, and D M, of the detaining aforesaid with strong hand, by our own proper view them and there as is aforesaid had, are convicted, a devery of them is convicted, according to the form of the sta tute aforesaid; whereupon we the justices aforesaid, upon every of the aforesaid E E, JB, and DM, do set and impose sever

justice has jurisdiction in these cases, yet it may, according to circumstances, be a proper exercise of his discretion, to call in to his aid, one or more other justices.

And go to the place where such force is made.] And Dal.. ton says, that if the doors be shut, and they within the house shall deny the justice to enter, he may break open the house to remove the force. Dalton, c. 44. s. 2.

And if they find any that hold such place forcibly.] If the of fenders, being in the house at the coming of the justice, shall make no resistance, nor shall make show of any force, then the justice cannot arrest or remove them, except upon the inquisition (which they may take in the manner after mentioned) a force be found. Cromp. 73. Dalton, c. 44. § 2.

But he ought to arrest and remove all such offenders whom at his coming he shall see or find continuing the force, and by virtue of the stat, of Northampton, 2 Ed. 3. (more fully set forth under the title AFFRAYS) he may seize their weapons and arms as forfeited to the king. See Vol. I. p. 28, 29. 1 Hawk: c. 63. s. 5. Dalton, c. 44.

They shall be taken and put in the next gaol.] It is said, that such justice of peace hath no power to commit the offender to gol unless he do it immediately upon his own view of the fact. 1 Hawk. c. 64. s. 8.

There to abide, convict by the record of the justices or justice.] Therefore one justice of peace may make a record of such a forcible holding, and such record is not traversable, because the justice of peace in making thereof acts not ministerially but as a judge. 1 Hawk, c. 64. s. 8.

ally a fine of ten pounds of good and laceful money of Great Britain, to be paid by them and every of them severally to our said sovereign lord the king, for the said offences; and do cause them and every of them then and there to be arrested ; and the sume E E, J B, and D M, being convicted, and every of them being convicted upon our own proper view, of the detaining aforesaid with strong hand, as is aforesaid, by us the aforesaid justices, are committed and every of them is committed to the gaol of our said lord the king, at Maidstone in the county of Kent uforesaid, being the next guol to the messuage aforesaid, there to abide respectively, until they shall have paid their said several fines respectively to our said lord the king, for their respective offences uforesaid: concerning which the premises aforesaid, we do make this our record. In witness whereof, we the aforesaid EB, PB, and W P, esquires, the justices aforesaid, to this record our hands ana seals do set, at the parish of B aforesaid, th the county of Kent aforesaid, on the fifteenth day of September, in the first year aforesaid of the reign of our said sovereign lerd the now king.

And this record (being made out of sessions by a particular justice) may be kept by him, or he may make it indented, and certify the one part into the King's Bench, or leave it with the clerk of the peace, and the other part he may keep himself. Dalton, c 44. §1.

But if a person against whom a complaint shall be made as having been guilty of a forcible entry, shall either traverse the entry or the force, or plead that he has been three years in pos session, the justice may summon a jury for the trial of such tra verse, 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 a tender of such a traverse, and therefore by a necessary construction, the jusuce must needs have this power as incidental to what is expressly given him.

64 s 8.

1 Hawk.c.

Till they have made fine and ransom.] And the justices must in their discretion impose a specific time according to the circums stances of the case; for in the case of The K. v. Sir Edm. El well, Hil. 1 Geo. 2, the defendant with two others were convict ed, upon a view of three justices in Kent, of a torcible detainer, and were by them comatted to Maid tone gaol, till they should pay a fine to the king: upon which they sued out a certiorari to remove the conviction into the King's Bench, and a habeas cor pus to bring up their bodies; the court held, that this commit ment, being that the defendant should lie in prison till they pay their fine, and no fine being s t, the conviction was naught; it was therefore quashed, and the defendants discharged. 2 Str. 794. 2 Ld. Raymona, 1515. 1 Sess. Cas. 289,

And the justices may assess the fine for this offence, either be fore the time of conviction, or after. 1 Hawk. c. 64. s. 8. 2 Ld. Raym.1515.

For they are not bound to do it upon the spot, but may take a reasonable time to consider of the fine. - 2 Ld. Raym. 1515.

They must also assess the fine upon every offender severally, and not upon then jointly; and the justice ough to estreat the same fine, and to send the estreat into the Exchequer, and from thence the sheriit may be commanded to levy it for his majesty's use. Dalton c 41. § 6.

But upon payment of the fine to the sheriff, or upon sureties, found (by recognizance) for the payment thereof, it seems that the justice may deliver the offenders out of prison-again at his pleasure. Dalton, c. 44. § 6.

And upon a conviction of forcible entry, if a fine be set, the

*For the manner of tendering such a traverse, and conveying a jury, see p. 502, infra.