« PreviousContinue »
of those that make insurrections, or great ridings, riots, routs, or assemblies, in disturbance of the peace or of the common law, or in affray of the people, shall be holden and kept, and fully executed, joined to the same, that at all times that such forcible entry shall be made, and complaint thereof cometh to the justices of peace, or to any of them, that the same justices or justice 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 after such entry made, they shall be taken and put in the next gaol, there to abide convict by the record of the same justices or justice until they have made fine and ransom to the king: and that all the people of the county, as well the sheriffs as other, shall be attendant upon the same justices to go and assist the same justices to arrest such offenders, upon pain of imprisonment, and to make fine to the king. And, in the same manner, it shall be done of them that make such forcible entries in benefices or offices of holy church."
8 Hen. 6, c. 9.
I. [Recites the 15 Ric. 2, c. 2.]
"II. And for that the said statute doth not extend to entries in tenements in peaceable manner, and after holden with force, nor if the persons which enter with force into lands and tenements be removed and voided before the coming of the said justices or justice, as before, nor any pain ordained if the sheriff do not obey the commandments and precepts of the said justices for to execute the said ordinance, many wrongful aud forcible entries be daily made in lands and tenements by such as have no right, and also divers gifts, feoffments, and discontinuances, sometimes made to lords, and other puissant persons, and extortioners within the said counties where they be conversant, to have maintenance, and sometimes to such persons as be unknown to them so put out, to the intent to delay and defraud such rightful possessors of their right and recovery for ever, to the final disherison of divers of the king's faithful liege people, and likely daily to increase, if due remedy be not provided in this behalf." Our lord the king, considering the premises, hath ordained, "that the said statute, and all and duty of other statutes of such entries or alienations made in times justices of past, shall be holden and duly executed; joined to the peace when same, that from henceforth, where any doth make any for- any forcible entry is cible entry on lands and tenements, or other possessions, or made into them hold forcibly, after complaint thereof made within the lands, or same county where such entry made, to the justices of peaceable peace, or to one of them, by the party grieved, that the jus- after detices or justice so warned, within a convenient time shall taining with cause, or one of them shall cause, the said statute duly to force. be executed, and that at the costs of the party so grieved.
"III. And moreover, though that such persons making such entry be present, or else departed before the coming of the said justices or justice, notwithstanding the same justices or justice in some good town next to the tenements so entered, or in some other convenient place, according to their discretion, shall have, or either of them shall have, authority and power to inquire by the people of the same county, as well of them that make such forcible entries in lands and tenements, as of them which the same hold with force; and if it be found before any of them, that any doth contrary to this statute, then the said justices or justice shall cause to reseize the lands and tenements so entered or holden as afore, and shall put the party so put out in full possession of the same lands and tenements so entered or holden as before.
The justices' IV. And also, when the said justices or justice make such precept to inquiries as before, they shall make, or one of them shall the sheriff to make their warrants and precepts to be directed to the return a jury sheriff of the same county, commanding him, of the king's to inquire of forcible behalf, to cause to come before them, and every of them, sufficient and indifferent persons, dwelling next about the lands so entered as before, to inquire of such entries, whereof every man, which shall be impanneled to inquire in this behalf, shall have land or tenement of the yearly value of forty shillings by year at the least, above reprises. And per annum, that the sheriff return issues upon every of them at the day of the first precept returnable xx. s., and at the second day xl. s., and, at the third time, c. s., and at every day after, The sheriff's the double. And if any sheriff or bailiff within a franpenalty for chise, having return of the king's writ, be slack, and make omitting his not execution duly of the said precepts to him directed to make such inquiries, that he shall forfeit to the king xx. li. for every default, and moreover shall make fine and ransom to the king.
They may keep their land by force,
V. And that as well the justices or justice aforesaid, as the justices of assizes, and every of them, at their coming into the country to take assizes, shall have, and every of them shall have, power to hear and determine such defaults and negligencies of the said sheriffs and bailiffs, and every of them, as well by bill at the suit of the party grieved for himself as for the king, to sue by indictment only to be taken for the king. And if the sheriff or bailiff be duly attainted in this behalf by indictment, or by bill, that he which sueth for himself and for the king have the one moiety of the forfeiture of xx. li. together with his costs and expenses. And that the same process be made against such persons indicted or sued by bill in this behalf, as should be against persons indicted or sued by writ of trespass done with force and arms against the peace of the king. VII. Provided always, that they which keep their possessions with force in any lands and tenements, whereof
they or their ancestors, or they whose estate they have in who have such lands and tenements, have continued their possessions had three in the same by three years or more, be not endamaged by years? force of this statute. possession.
31 Eliz. c. 11.
Whereas there is one good act made and established in the eighth year of the reign of King Henry the Sixth, against such persons as should make forcible entry into lands, tenements, and other possessions, or them should forcibly hold; and one very good proviso or clause, in the said act contained, as ensueth:
II. Provided always, that they which keep their possessions with force, in any lands and tenements whereof they or their ancestors have continued their possession in the same by three years or more, be not endamaged by force of the said statute.
6, c. 9,
sions by years.
III. And whereas divers of the queen's majesty's good The proviso and loving subjects and their ancestors, or those whose es- in the statate they have, for many years together, above the space of tute of 8 H. three years or more, have been in quiet possession of their touching dwelling-houses, and other their lands and possessions; continuance and now of late divers of her majesty's said subjects, having of possesentries made upon their possessions, having had such quiet three and long possession, for disturbing of such enterers, and for keeping of their possession against such enterers, by colour of indictments of forcible entry, or forcible keeping possession, found against them, by means of the oaths of such enterers, have been removed and put out of their dwellinghouses, and other their possessions, which they have quietly held by the space of three years together or longer time, next before such indictments found against them, against the true meaning and intent of the said proviso or clause contained in the said act: for remedy of which inconve- No restinience, and for true declaration and explanation of the law tution shall therein, be it ordained, declared, and enacted by the autho- be made if the party rity of this present parliament, that no restitution upon indicted any indictment of forcible entry, or holding with force, be hath been made to any person or persons, if the person or persons so three years in quiet indicted hath had the occupation or hath been in quiet possession, possession by the space of three whole years together, next and his esbefore the day of such indictment so found, and his, her, or tate not their estate or estates, therein not ended or determined; ended. 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 alle- Costs shall gation be tried against the same person or persons so in- be awarded dicted, then the same person or persons so indicted to pay against the such costs and damages to the other party, as shall be as- dicted, if
his said allegation be found
sessed by the judges or justices before whom the same shall be tried; the same costs and damages to be recovered and levied as is usual for costs and damages contained in judgments upon other actions.
21 Jac. 1, c. 15.
Be it enacted by the authority of this present parliament, that such judges, justices, or justice of the peace, as by reason of any act or acts of parliament now in force are authorized and enabled, upon inquiry, to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon with force, or from them withholden by force, shall by reason of this present act have the like and the same authority and ability from henceforth, (upon indictment of such forcible entries, or forcible withholdings before them duly found,) to give like restitution of possession unto tenants for term of years, tenants by copy of court-roll, guardians by knightsservice, tenants by elegit, statute-merchant, and staple, of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force.
The defects of the 5 Rich. 2, c. 8, and of the 15 Rich. 2, c. 2, are stated in 1 Russ. 284. It seems that, at the common law, a man disseised 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 enter in due time: 1 Haw. P. C. 140; and see Mr. Butler's note to Co. Litt. 257, a; and therefore in such case an indictment would not lie against him at common law for a forcible entry. Lord Kenyon, however, expresses a doubt upon this point: R. v. Wilson, 8 T. R. 361. But, though indictments of this nature are generally brought on the statutes, it is clear, that where the defendant has no title, an indictment will be against him at common law, R. v. Bake, 3 Burr. 1731; and in such indictment no technical words are necessary, provided it appear upon the face of it that such force and violence have been used as constitute a public
breach of the peace: 8 T. R. 362. It may further be observed, that the prosecutor, not being entitled to restitution and damages at common law, as he is by statute, it is not necessary to set forth that the prosecutor was seised of the premises, but only that he was in possession of them: 8 T. R. 357.
To proceed to indictments on the statutes: Force is the gist of the offence, under the statutes as well as at common law: R. v. Lloyd, Cald. 415. And the words manu forti, taken from the statutes, are necessary to these indictments, and distinguish this kind of entry from an ordinary trespass: Style, 136. It is customary, also, to use the words "unlawfully expel and put out."
But in an indictment under 9 Hen. 6, the word disseise is sufficient, without either of the words unlawfully or expel, for the word implies an unlawful expulsion: 2 Stark. Cr. Pl. 446. But an indictment was held bad which charged that the defendants entered on the possession of A., farmer of B., and
disseised B., without stating that they expelled A.; for here, the possession of the termor being the possession of the reversioner, it was necessary to allege the expulsion of the former in order to show the disseisin of the latter: Freiston v. Shellito, Yelv. 165. Various circumstances should be stated relative either to the tenure or the quantity of the estate in question, according to the different statutes on which the indictment is brought: R. v. Wannop, Say, 142. Thus, if the indictment be framed on the 8 Hen. 6, it must show that the estate of the party aggrieved was a freehold, and that it was his freehold at the time of the force; though for the latter purpose it does not appear that any precise form of words is necessary: 1 Haw. P. C. 148. It has been held, that in an indictment under this statute, the tenure of the estate will be implied from the word disseised, without other words of freehold: Wroth's case, 3 Leon. 102; and see Palm. 277. Again, if the indictment be framed in pursuance of the 2 Jac. 1, it must show that the estate of the party aggrieved was such as to bring him within the provisions of that act. Therefore, an indictment setting forth generally that the party was possessed, or that he was possessed for a certain term, without saying "for years," is bad: 1 Haw. P. C. 148; and see 1 Sid. 102. So, also, an indictment for a forcible entry into a copyhold is bad, if it only state that the copyhold was held at the will of the lord, according to the custom of the manor, without saying "by copy of court-roll:" Anon. Ventr. 89.
And even in an indictment on the 5 or 15 Ric. 2, it ought to appear that the party aggrieved had some estate in the land, either as a freeholder or lessee; though it need not show who had the freehold at
the time of the force: 1 Haw. P. C. 148. But, unless the particular statute require it, it seems unnecessary to show the quantity of estate which the party injured had in the land, or by what title he claims it; for it is not the title, but the possession, which is in question: id.; and see 2 Roll. Abr. 80, pl. 3 ; contra, 1 Ventr. 306. And where more is stated than is necessary to prove the offence laid in the indictment, such unnecessary matter need not be proved. Thus, in an indictment for a forcible entry on the possession of a lessee for years, proof of the force and of such possession is sufficient, although the indictment allege that the premises were the freehold of A., and such allegation is not proved: R. v. Lloyd, Cald. 415. The premises must be described with the same certainty as in a declaration in ejectment, on account of the restitution which follows conviction: Archb. 338; 1 Russ. 290. And no indictment can warrant an award of restitution, unless it find that the wrong-doer ousted the party grieved, and also continues his possession at the time of the finding of the indictment: 1 Russ. 291.
As to the persons by whom, and the possessions in respect of which the offence may be committed, see 1 Russ. 286. But it may be shortly observed, that an indictment can be sustained for a forcible entry upon ecclesiastical possessions, as churches, vicarage-houses, &c., as also upon rents, tithes, &c. But a way, or any such like easement, which is no possession, is not within the statutes. And to bring a case within the statutes, a claim, either expressed or implied, must have been made to the lands in question. Forcible entry, as also forcible detainer, must be accompanied with some circumstances of actual violence or terror: