From Paley, certain fish, to wit, 24 fish called tench, 24 fish called perch, 24 B. Warrant to apprehend on the above information. C. Commitment for a misdemeanor in stealing fish from a pond in an inclosed park, &c. on 5 G. 3. c. 14. § 1. [Commencement to be in the common form; see title Commitment, vol. 1. p. 558. and then proceed thus: A. O. charged upon the oaths of A. I. and A. W. with entering into a certain park (or, as the case may be) called G. park, situate in the parish of - in the county of aforesaid, of and belonging to the said A. I. and stealing, taking, killing, destroying, and carrying away, certain fish, to wit, 24 carp, &c. of the value of 24s. belonging to the said A. I. in a certain pond of water in the said park then and there being, wherein the said fish had been bred, and were then kept and preserved, without the consent of the said A. I. the owner thereof, contrary to the form of the statute in such case made and provided. [Conclusion." Him safely to keep until he be delivered from your custody by due course of law."] D. Information on oath before a justice for fishing in a river without consent of the owner of the fishery, on 5 Geo. 3. c. 14. § 3. Ante, p. 391. West Riding of Yorkshire, BE it remembered, that on the 15th day of No vember, in the year of our Lord 1812 at to wit. Gisburn, in the West Riding of the county of York, Edward Marton, of Great Mitton, in the said riding, labourer, on behalf and at the instance of Jane Clark, widow, the owner of the fishery of a part of the river Ribble, which runneth in the lands of the said Jane Clark, in the township of Waddington, in the said riding, cometh before me, the Reverend Thomas Collins, doctor in divinity, one of the justices of our said lord the king, assigned to keep the peace of our said lord the king in and for the said riding, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said Riding committed, and upon oath to him by me now here administered upon the holy gospels of God, giveth me the said justice to understand and be informed that on Sunday the 1st day of November instant at the township of Waddington aforesaid, in the riding aforesaid, James Winckley, of Great Mitton aforesaid, labourer, did attempt to take, kill, and destroy the fish in that part of the said river Ribble, which runneth in the said lands of the said Jane Clark, in the township of Waddington aforesaid, in the riding aforesaid, without her authority, and without and against her consent, contrary to the form of the statute in that case made and provided, she, the said Jane Clark, being then and there owner of the said part of the said river, and of the fishery of the same; and he the said James Winckley, not then and there having any just right, or any just, reasonable, or probable claim, or cause, to kill, carry away, or destroy any of the fish in that part of the said river, or to attempt to take, kill, or destroy any fish in that part of the said river, and the said part of the said river, wherein the said fish were so attempted to be taken, killed, and destroyed by the said James Winckley, as aforesaid, not then being in any park or paddock, or in any garden, orchard, or yard adjoining or belonging to any dwelling-house, but then being in other inclosed ground, then being the private property of the said Jane Clark, at the Township of Waddington aforesaid, in the West Riding aforesaid; whereby and by force of the statute in that case made and provided, he the said James Winckley hath forfeited for his said offence the sum of five pounds to the said Jane Clark, the owner of the fishery aforesaid, whereupon the said Edward Marton, on behalf and at the instance of the said Jane Clark, the owner of the fishery aforesaid, prayeth the judgment of me, the said justice in the said premises, and that the said James Winckley may be forthwith apprehended, and brought before me to answer the said complaint. E. Exhibited and sworn at Gisburn aforesaid, } T. C. Warrant on the preceding information to bring the defendant to answer the charge, pursuant to § 3. of the statute. West Riding of York- To the constables of Waddington, in the shire, to wit. said Riding, and also to A. B. WHEREAS information and complaint on oath hath been made on behalf and at the instance of Jane Clark, widow, the owner of the fishery of a part of the river Ribble, which runneth in the lands of the said Jane Clark, in the township of Waddington in the said riding, before me Thomas Collins, doctor in divinity, one of his majesty's justices of the peace, in and for the said riding, that on Sunday, &c. (as in the information verbatim to the words, "at the township of Waddington aforesaid, in the West Riding aforesaid," inclusive). These are therefore to require you to apprehend the said James Winckley, and bring him before me the justice aforesaid, to answer the said complaint, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal the 16th day of November, in the year of our Lord 1812. T. C. F. Conviction (on the above information) on the 5 Geo. 3. c. 14. From Paley, for attempting to kill fish in a private river, without the [38.] consent of the owner. West Riding, Yorkshire, BEi E it remembered, that on the 16th day of Novem- Information on ber, in the 53d year of the reign of our sove- behalf of the reign lord George the third, by the grace of God of owner. to wit. Complaint on oath. faith, and in the year of our Lord 1812, at Gisburn in the West Riding of the county of York, Edward Marton, of Great Mitton, in the said riding, labourer, on behalf and at the instance of Jane Clark, widow, the owner of the fishery of a part of the river Ribble, which runneth in the lands of the said Jane Clark in the township of Waddington in the said riding, cometh before me the Reverend Thomas Collins, doctor in divinity, one of the justices of our said lord the king, assigned to keep the peace of our said lord the king in and for the said West Riding, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said West Riding committed, and upon oath to him by me now here administered upon the holy gospel of God, giveth me the said justice to understand and be informed, that on Sunday, the 1st day of November instant, at the township of Waddington aforesaid, in the riding aforesaid, James Winckley of Great Mitton aforesaid, labourer, did attempt to take, kill, and destroy the fish in that part of the said river Ribble, which runneth in the said lands of the said Jane Clark, in the township of Waddington aforesaid, in the riding aforesaid, without her authority, and without and against her consent, contrary to the form of the statute in that case made and provided, she the said Jane Clark being then and there owner of the said part of the said river; and the said James Winckley not then and there having any just right, or any just, reasonable, or probable claim or cause, to take, kill, carry away, or destroy any of the fish in that part of the said river, or to attempt to take, kill, or destroy any fish in that part of the said river wherein the said fish were so attempted to be taken, killed, and destroyed by the said James Winckley as aforesaid, not then being in any park or paddock, or in any orchard, garden, or yard adjoining or belonging to any dwelling house, but then being in other inclosed ground, then being the private property of the said Jane Clark, at the township of Waddington aforesaid, in the West Riding aforesaid; whereby and by force of the statute in that case made and provided, the said James Winckley hath forfeited for his said offence the sum of 51. to the said Jane Clark, the owner of the fishery aforesaid; whereupon he the said Edward Marton, on behalf, and at the instance of the said Jane Clark, the owner of the fishery aforesaid, prayeth the judgment of me the said justice in the premises; and that the said James Winckley may be forthwith apprehended and brought before me to answer the said complaint; whereupon afterwards, to wit, on the 18th day of November, in the year aforesaid, he the said James Winckley being by virtue of my warrant brought before me the justice aforesaid, at Gisburn aforesaid, in the riding aforesaid, to answer the said complaint contained in the said information, and having heard the same read, and the said Edward Marton being also present before me, and complaining before me, against the said James Winckley, of and for the offence aforesaid, and praying that he may be convicted thereof, the said James Winckley is asked by me the said justice, if he can say any thing for himself why he the said James Winckley should not be convicted of the premises above charged upon him in form aforesaid, to which he the said James Winckley says, that he is Plea not guilty. not guilty thereof; nevertheless, on the said 18th day of November in the 53d year aforesaid, at Gisburn aforesaid, in the riding aforesaid, John Sanderson of Boulton, in Bolland, in the riding aforesaid, yeoman, a credible witness, cometh before me the said justice, in his proper person, and before me the said justice, to wit, on the said Defendant apprehended by warrant. Evidence. day and year last aforesaid, at Gisburn aforesaid, in the riding aforesaid, being duly sworn touching the premises, upon the holy gospels of God, upon his corporal oath to him the said John Sanderson, then and there administered by me the said justice, (I the said justice having then and there full power and authority to administer the said oath to the said John Sanderson) deposeth, sweareth, and See 1 East, 648. upon his oath aforesaid affirmeth and saith, in the presence of the said James Winckley, that on the 1st day of November instant, in the year aforesaid, he saw the said James Winckley at the township of Waddington aforesaid in the riding aforesaid attempt to take, kill, and destroy the fish in that part of the river Ribble, which runneth in the lands of the said Jane Clark, in the township of Waddington, in the West Riding of the County of York, and that the said part of the said river was not then nor is in any park or paddock, or in any garden, orchard, or yard adjoining or belonging to any dwelling house, but then was and is in other inclosed ground then and there being the private property of the said Jane Clark, at the township of Waddington aforesaid, in the riding aforesaid; and that the said Jane Clark then and there was and is the true and lawful owner of the fishery of the said part of the said river: And thereupon he the said James Winckley having heard the said evidence so given against him as aforesaid, is asked by me if he has any thing to say or prove in answer to such evidence, or to shew why he should not be convicted of the offence above charged upon him in form aforesaid; and because the said James Winckley doth not nor can say or prove any thing in his own defence touching or concerning the offence so charged upon him as aforesaid, or shew why he should not be convicted of the same offence; and inasmuch as the said James Winckley has not proved or offered any evidence to prove, nor hath alleged that he had the authority or consent of the said Jane Clark, or of any owner of the said fishery, to take, kill, carry away, or destroy, or to attempt to take, kill, or destroy any fish in the fishery aforesaid, or any just right, or any just, reasonable, or probable claim or cause, or any right or claim whatsoever so to do. Therefore it is on the said 18th day Judgment, of November in the 53d year aforesaid, at Gisburn aforesaid, in the riding aforesaid, by me the said justice adjudged, upon the testimony of the said John Sanderson, a credible witness as aforesaid, according to the form of the statute in such case made and provided, that the said James Winckley is guilty of the offence so charged upon him as aforesaid, and that he the said James Winckley be, and he is hereby by me the said justice convicted of the offence aforesaid, according to the statute aforesaid, and I the said justice do award and adjudge, that for such offence, he the said James Winckley hath forfeited the sum of 51. to the said Jane Clark, the owner of the fishery of the said part of the said river so running as aforesaid, to be paid as the statute aforesaid doth direct. Given under my hand and seal at Gisburn foresaid, in the riding aforesaid, the 18th day of November, in the gear of our Lord 1812. Flight, See Forfeiture. T. C. (L. S.) Forcible Entry and Detainer. FORCE, in the common law, is most commonly taken in ill part, for unlawful violence; for maximè paci sunt contraria vis et injuria. 1 Inst. 161 b. It seems that at the common law a man disseized of any lands or tenements, (if he could not prevail by fair means,) might lawfully regain the possession thereof by force, unless he were put to a necessity of bringing his action, by having neglected to re-enter in due time: And it seems certain that even at this day he who is wrongfully dispossessed of his goods may justify the re-taking of them by force from the wrong-doer, if he refuse to re-deliver them; for the violence which happens through the resistance of the wrongful possessor, being originally owing to his own fault, gives him no just cause of complaint, inasmuch as he might have prevented it by doing as he ought. Perhaps, however, as Lord Kenyon observed, some doubt may arise respecting what Mr. Serjt. Hawkins says, that at common law the party may enter with force into that to which he has a legal title. But without giving any opinion concerning that dictum one way or the other, but leaving it to be proved or disproved whenever that question should arise; all that the court wished to say was, that their opinion in the principal case left that question untouched, it appearing by the indictment there (which was at common law) that the defendants "unlawfully" entered, and therefore the court could not intend that they had any title. But this indulgence of the common law, in suffering persons to regain the lands they were unlawfully deprived of, having been found by experience to be very prejudicial to the public peace, by giving an opportunity to powerful men, under the pretence of feigned titles, forcibly to eject their weaker neighbours, and also by force to retain their wrongful possessions; it was thought necessary by many severe laws to restrain all persons from the use of such violent methods of doing themselves justice. However, even at this day, in an action of forcible entry grounded on those laws, if the defendant make himself a title which is found for him, he shall be dismissed without any inquiry concerning the force, for howsoever he may be punishable at the king's suit, for doing what is prohibited by statute, as a contemner of the laws, and disturber of the peace, yet he shall not be liable to pay any damages for it to the plaintiff, whose injustice gave him the provocation in that manner to right himself. Yet still forcible entry and detainer are offences at the common law; and the prosecutor, if he please, may proceed in that way: but then the indictment ought to express not only the common technical words with force and arms, but also such circumstances as thereby it may appear upon the face of the indictment to be more than a common trespass; for a man cannot be indicted for a bare trespass. |