Before the same Justice.]—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 Queen. (Dalt. c. 44).

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 Hawk. c. 64, 6. 60).

6. Proceedings before justices for restitution in case of.

And it seems to be settled at this day, that if the defender tender a Traverse. traverse of the force, the justice ought not to make any restitution, till the traverse be tried. (R. v. Bengough, 3 Salk. 169).

The complainant is not a competent witness. (Ante, 85). The defendant may, by the 31 Eliz. c. 11, plead three years' possession. See the enactment, it will be found fully set forth ante, 77, 78. It hath been holden, that the plea of such possession is good, without showing 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 Hark. c. 64, s. 56; sed vide ante, 88). 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 Hawk. c. 64, s. 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. e. 133; 1 Hawk. c. 64, s. 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. e. 133). And it seemeth he who tendereth the traverse shall bear all the charges of the trial; and not the Queen or the party prosecuting. (Id.). And the 8 Hen. VI. c. 9, s. 3, (ante, 76), enacts, if such forcible entry or detainer be found-(see form No. 6, post, 93)-before such justice, then the said justice shall cause to reseise-(see form No. 12, post, 96) the lands and tenements so entered or holden, and shall restore the party put out to the full possession of the same.

Witness.

Plea of three years' quiet

possession.

reseisin.

The said Justice.]-It seems to be agreed that no other justices of the Mode of procuring peace, except those before whom the indictment shall be found, shall have any power, either at the session or out of it, to make any award of restitution. (1 Hawk. c. 64, s. 50).

Shall cease to reseise.]—And the justice may break open the house by force to reseise the same; and so may the sheriff do, having the justice's warrant. (Dalt. c. 44).

Reseise.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).

The sheriff, if need be, may raise the power of the county to assist him in the execution of the precept; and therefore, if he make a return thereto, that he could not make a restitution by reason of resistance, he shall be amerced. (1 Hawk. c. 64, s. 9).

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 bailiff to do it; (Dalt. c. 44; 1 Hawk, c. 64, s. 49); and it may be, it seems, done over

7. Forms.

Proceedings removed by certiorari.

On a certiorari.

Where conviction quashed. court must award restitution.

again, if the wrong-doer immediately after again dispossesses forcibly. (See ante, 86).

If the magistrates convict the parties, the conviction and proceedings may be removed into the Court of Queen's Bench by certiorari and there reviewed, and that court may award a writ of restitution to the sheriff, to restore possession to the party expelled. (Dalt. c. 44, p. 98, ante, 85). As to the notice of motion and other proceedings upon the certiorari, see title " Certiorari," Vol. I.

Where the conviction is quashed, the court will order restitution to the party injured. As in the case of R. v. Jones, 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. (1 Str. 474).

VII. Forms.

(1). Commitment

on 6 Ric. 2, c. 8,

[Commencement as ante, p. 54, (No. 1.)]—on the

- day of

at the

for a forcible entry parish of, in the said county, forcibly, and with strong hand, did enter into

into a freehold.

(2). Commitment on 21 Jac. 1, c. 15, for forcible entry into a leasehold, copyhold, &c.

(3). Commitment

for a forcible detainer on stat.

8 Hen. 4, c. 9. or 21 Jac. 1, c, 15.

(4). Indictment

for a forcible

a certain messuage, [or, land, &c., according to the fact], with the appurtenances there situate, of which one A. B. was then seised in his demesne as of fee, and the said A. B. from the peaceable possession of the said messuage, [or, land, &c.,] with the appurtenances aforesaid, forcibly and with strong hand unlawfully did expel and put out; against the form of the statute in that case made and provided. And you, the said keeper, &c. [Conclude as ante, p. 54, (No. 1.)]

of

Same as last precedent, adapting it to a term for years, tenancy by copy court roll, or tenancy by elegit, statute merchant and staple. [See the 21 Jac. J. c. 15, ante, as thus:]-" of which one A. B. was possessed for a certain unexpired term of years, &c. &c. as in the last precedent].

[Commencement as ante, p. 54, (No. 1]-on the day of- A. D.at the parish of in the said county, with force and arms and with a strong hand, unlawfully did enter a certain messuage, with the appurtenances there situate, of which one A. B. was seised in his demesne as of fee, and the said A. B., from the peaceable possession of the said messuage, with the appurtenances aforesaid, then and there did unlawfully expel and put out; and that the said C. D., then and there, and from hence hitherto, the said A. B., from the possession of the said messuage with the appurtenances aforesaid, with force and arms, and with strong hand, unlawfully and injuriously did keep out, and the said messuage and appurtenances, and the possession thereof, then and there unlawfully and forcibly did hold, and still doth hold, from the said A. B.; against the form of the statute in that case made and provided." And you, the said keeper, &c. [Conclude as ante, p. 54, (No. 1.)]

(to wit). The jurors for our lady the Queen upon their oath present, that
in the county of
labourer, on the

entry and detainer A. I., late of the parish of

on the statutes.

day of in the year of the reign of our lady the now Queen Victoria, 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. O., late of &c. afterwards, to wit, on &c., the said &c. 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, unlawfully did enter, and the said A. 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 afore

said, until the day of the taking this inquisition, from the possession 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 terror and damage of the said A. I., against the peace of our said lady the Queen, and against the form of the statutes in that case made and provided.

Note-If it is a freehold, then the party should 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 must be expelled, ejected, amoved, or the like.

(to wit).

in the

The jurors for our Lady the Queen upon their oath present, that C. D., late of the parish of in the county of -, gentleman, E. P., of the same parish, carpenter, and G. H., of the same parish, labourer, together with divers other persons, to the number of six or more, to the jurors aforesaid unknown, on the day of year of the reign of our sovereign lady the now Queen Victoria, with force and arms, to wit, with pistols, swords, sticks, staves, and other offensive weapons, at the parish aforesaid, in the county aforesaid, into a certain barn and a certain orchard there situated and being, and then and there in the possession of one I. K., unlawfully, violently, forcibly, injuriously, and with a strong hand, did enter; and the said C. D., E. F., and G. H., together with the said other evil-disposed persons, to the jurors aforesaid unknown, as aforesaid, then and there, with force and arms, to wit, with pistols, swords, sticks, staves, and other offensive weapons, unlawfully, violently, forcibly, injuriously, and with a strong hand, the said I. K. from the possession of the said barn and orchard did expel, amove, and put out; and the said I. K., so as aforesaid expelled, amoved, and put out from the possession of the said barn and orchard, then and there with force and arms, to wit, with pistols, swords, sticks, staves, and other offensive weapons, unlawfully, violently, forcibly, injuriously, and with a strong hand, did keep out, and still do keep out; and other wrongs to the said I. K., then and there did; to the great damage of the said I. K., and against the peace of our lady the Queen, her crown and dignity.

- day of

in the

year

Kent, Be it remembered, that, on the
to wit. of the reign of our sovereign lady Queen Victoria, at B., in the county
of Kent aforesaid, E. E. complaineth to us, Sir E. B., baronet, P. B. and W. P.
esquires, three of the justices of our said Lady the Queen, assigned to keep the peace

(a) The books upon the office of a justice of the peace generally set forth that the record ought to be in the pre sent tense, and not in the time past, (and herewith do accord the adjudged cases in the court of King's Bench); yet, nevertheless, they all exhibit the form of a record in the time past, and not in the present. (1 Str. 443). Therefore Dr. Burn took the liberty to alter the same from the record in Ld. Raymond of the conviction of Sir Edm. Elwell and others, (see ante, p. 89); adding the fine thereunto, for the want of which that conviction was quashed. And he gave the following 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. Such form, however, was held bad in Rer v. Wilson, (5 Nev. & M. 164), for not setting out the facts which shew the detainer to be unlawful, and from that case it would seem that in a

conviction on the view of the justices it
ought to appear on the face of the con-
viction, that the defendant was sum-
moned, or had the opportunity of de-
fending himself against the ex parte
charge.

Kent, Be it remembered, that, on the
to wit.
of
in the
year of the reign of our sovereign lord
King George, &c., at Beckingham, in the
county of Kent, aforesaid, Eliz. Elwell
complaineth to us, Sir E. Bettenson, Baro-
net, P. Burrell, and W. Passenger, Es-
quires, 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

7. Forms.

(5). Indictment for a forcible entry and detainer at common law.

(6). Record of conviction for a forcible detainer upon view (a).

7. Forms.

in the said county, and also to hear and determine divers felonies, trespasses, and
other misdemeanors in the said county committed; that E. F., late of London, gentle-
man, J. B., late of ·
and D. M., late of
into the messuage of her the
said E. E., called L.
situate within the parish of B. 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 E. E. for the term
of her life, [or," to her and her heirs in her demesne as of fee," or was possessed
for a certain term of years, whereof · years and upwards were then to come un-
expired], 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; where-
upon the said E. E. prayeth 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 being heard, we the afore-
said E. B., baronet, P. B. and W. P., esquires, justices aforesaid, to the messuage
aforesaid personally have come and viewed the said messuage on the - day of -
A. D., whereupon the said E. F., J. B., and D. M., after being duly sum-
moned to answer the said charge, appeared before us the said justices, on the said ·
day of
at the said messuage, [according to the fact], and
having heard the said charge, declared that they were not, nor was either of them,
guilty of the said offence, [or as the case may happen to be], did not appear before
us the said justices pursuant to the said summons, [or, "did neglect and refuse to
make any defence against the said charge"], whereupon we the said justices did pro-
ceed to examine into the truth of the said charge against the said E. F., J. B., and
D. M., and on the said day of - A. D. --9 at the parish aforesaid,
in the county of a credible witness in that behalf, upon his oath duly admi-
nistered to him by us, deposeth and saith, [if the defendant be present, say], "in
the presence of the said E. F., J. B., and D. M.," that, &c. [here state the evidence
as in the case of a conviction, and as nearly as possible in the words used by the

A. D.

enter, and her the said E. E., of the mes-
suage aforesaid, whereof the said E. E.
at the time of the entry aforesaid was
seised as of the freehold of her the said
E. 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 fif-
teenth day of September, at the parish of
B. aforesaid, prayeth of us, so as afore-
said being justices, to her in this behalf
that a due remedy be provided, according
to the form of the statute aforesaid; which
complaint and prayer by us, the aforesaid
justices, being heard, we the aforesaid E.
B., Baronet, P. B. and W. P., Esquires,
justices aforesaid, to the messuage afore-
said, personally have come, and do then
and there find and see the aforesaid Ed.
E., J. B., and D. M., the aforesaid mes-
suage, with force and arms, unlawfully,
with strong hand and armed power de-
taining, against the form of the statute in
such case made and provided, according
as she, the same E. E., so as aforesaid
hath unto us complained; therefore it is
considered by us, the aforesaid justices,
that the aforesaid Edmund Elwell, Joseph
Billers, and Daniel Monty, of the detain-
ing aforesaid with strong hand, by our
own proper view then and there as afore-

said had, are convicted, and every of them is convicted, according to the form of the statute aforesaid: whereupon we, the jus tices aforesaid, upon every of the aforesaid Ed. E., J. B., and D. M., do set and im pose severally a fine of 101. of good and lawful 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 same Ed. 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 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, aforesaid, being the next gaol to the messuage aforesaid, there to abide respectively, until they shall have paid their several fines respectively to our said lord the King, for their respective offences aforesaid. Concerning which the premises aforesaid, we do make this our record. In witness whereof, we, the aforesaid E. B., Baronet, P. B., and W. P., Esquires, the justices aforesaid, to this record our hands and seals do set, at the parish of B. aforesaid, in the county of Kent aforesaid, on the day of

" in the

year aforesaid of the reign of our said sovereign lord the now King.

witness, and if more than one witness be examined, state the evidence given by
each. If the defendant confess the offence, then instead of stating the evidence, say,
“and the said E. F., J. B., and D. M., acknowledged and voluntarily confessed the
same to be true"), therefore we the said justices, finding and seeing that the aforesaid
F. F., J. B., and D. M., the aforesaid messuage, with force and arms, unlawfully
with strong hand and armed power do detain, against the form of the statute in such
case mode and provided, and it manifestly appearing to us the said justices, that the
said E. F., J. B., and D. M. are guilty of the offence charged upon them as aforesaid,
as the the said E. E. so as aforesaid hath unto us complained; it is considered by us
the aforesaid justices, that the aforesaid E. F., J. B., and D. M. of the offence afore-
said, and of the detaining aforesaid with strong hand, by our own proper view then
and there as aforesaid had, are convicted, and every of them is convicted according to
the form of the statute aforesaid; whereupon we the justices aforesaid, upon every of
the aforesaid E. F., J. B., and D. M. do set and impose severally [ante, 90] a fine
and ransom of ten pounds, to be paid by them and every of them severally to our said
sovereign lady the Queen for the said offence, and do cause them and every of them
then and there to be arrested, and the same E. F., J. B., and D. M. being convicted,
and every of them being convicted, upon our own proper view of the detaining afore-
acid 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 lady the Queen at M. in the county
of Kent aforesaid, being the next gaol to the messuage aforesaid, there to abide re-
spectively until they shall have paid their several fines and ransoms respectively to our
said lady the Queen for the offence aforesaid. Concerning which the premises afore-
said we do make this record. In witness whereof we the aforesaid justices have here-
unto set our hands and seals, at · aforesaid, in the county aforesaid, on the
day of, in the ——— year of our Lord

E. B. (L. S.)
P. B. (L. S.)

County ofTo the constable of in the said county, and to the keeper of her Majesty's gaol at —, in the said county, and to his deputy and deputies there, and to every of them, greeting: Whereas, upon complaint made unto us this day, by A. 1., of — in the said county, yeoman, that [&c., state the complaint concisely as in the above form of record] whereupon we went immediately [or on — to the said messuage of the said A. I., at aforesaid, in the said county, and it appearing unto us as well upon our own view, and upon evidence adduced to me in that behalf, that the said E. F., J. B., and D. M., were guilty of the said offences, and that they were forcibly, with strong hand and armed power, holding the said house, against the peace of our said lady the Queen, and against the form of the statute in such case made and provided, they were convicted before us of the said offence: and whereupon we the said justices adjudged that the said E. F. should pay unto our lady the Queen for the said offence the fine and ransom of £- -, and that the said J. B. should pay unte our said lady the Queen for the said offence the fine and ransom of £—, and that the said D. M. should pay unto our said lady the Queen for the offence aforesaid the fine and ransom of £—, and that they the said E. F., J. B., and D. M. should severally and respectively be imprisoned in her Majesty's gaol at there to abide until they should severally and respectively have paid the respective fines and ransoms aforesaid. And whereas they have not nor hath any of them paid the respective fines and ransoms aforesaid, these are therefore to command you the said constable to take the said E. F., J. B., and D. M., and them safely to convey to her Majesty's gasi at, aforesaid, and there to deliver them to the said keeper thereof, together with this precept; and I do hereby command you the said keeper of the said gaol, to receive the said E. F., J. B., and D. M. into the said gaol, there to imprison them respectively until they shall severally and respectively pay the said respective fines and ransoms aforesaid. Herein fail you not, at the peril that may follow thereof. Given - aforesaid, in the county aforesaid, under our hands and seals, the day — in the year of the reign of our said sovereign lady the now Queen. Note by Burn.-By the forms in the Books, all the offenders stand committed until all have paid, so as that the first shall not be discharged on payment of his own fine, but continue until all the rest shall have paid likewise; which seems unreasonable, and is not warranted by the statute.

of

7. Forms.

(7). Commitment
for a forcible
entry and detainer
by one justice.

County of Richard Whinfield, Esquire, one of the justices of our lord the (8). Precept to King, assigned to keep the peace in the said county, and also to sheriff to return hear and determine divers felonies, trespasses, and other misdemeanors in the said

a jury.