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Forcible Entry, &c.
And of the Kings Termor be put out by Force, he cannot
prefer a Bill
of Indictment (upon the Statute of 8 H. 6) that he was put out,
and
the King disseised: But he must have an Information of Intrusion
in the
Exchequer. |
Chap. 126.
Cromp. 16. |
The Kings
Tenant. |
Yet it seemeth, that upon complaint made to the
Justice of Peace by
the Kings Termor, of any such Force, the Justice of Peace, may, nay
ought to amove the Force, and upon his view thereof to record it, and to
commit the Offenders to Prison, and may fine them; and after such
Force removed, the Kings Termor may presently re-enter (if he can) in
peaceable manner. |
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Lessee for
years.
Copiholder. |
If a Forcible Entry or Detainer shall be made upon
any Lessee for
years, Tenant at Will, or upon a Copiholder, whether it be by a stranger,
or by the Lessor, or by the Lord, the Justices of Peace upon their view
thereof, are to remove such Force, and may commit to the Prison, the
parties which made such Entry, or which shall hold it with Force,
and
may fine them: But whether the Justice of Peace might make Restitution,
and set them (sc. The Lessee for years, Tenant at Will, or Copiholder)
into their Possessions again, hath been much questioned. |
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§. 8.
Restitution
upon View. |
Some hold opinion, That the Justices of Peace might
put them in possession
again; and of this opinion was Mr. Marrow and Mr. Lambert;
and
to maintain this opinion, these Reasons may be given. |
Lamb. 149. |
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First, for that the words of the old Statutes seem
to warrant it; for
the Statute of 15 R. 2. in the Preamble thereof, as also the
Statute of
8 H. 6. in the Body thereof, hath this word [Possessions]
which word
most properly doth extend to a Lease for years, &c. |
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Again, that clause of the Statute 8 H. 6.
which provideth the Restitution,
is thus. If it be found that any doth contrary to this Statute, then
the
said Justices, &c. shall put the party so put out in full possession,
&c. |
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Now it cannot be denied, but that he which by Force
expulseth lessee
for years, Tenant at Will, or a Copiholder, doth contrary to this Statute;
also they be the parties put out. |
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Again, the same mischief and inconvenience which
these Laws do
labour to remove, is to Lessee for years, Tenant at Will, and to the
Copyholder. |
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And we may find it usual, that where Statutes are
made for to remedy
any common mischief, there to help things in the same degree, one action,
thing, place and person, hath in construction been taken for another:
And
a good Expounder, saith Sir. Edw. Co. 11. 34. maketh every sentence
to
have his operation to suppress all the mischiefs before the said act,
and
principally those that are specified in the Act. |
Co. 11. 33.
34.
Plow. 178. |
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And again, saith he, It is the office of the Judges
always to make such
construction of Statutes as may repress the mischief, and advance the remedy,
and to suppress all Evasions which may continue the mischief, and
to add Force and Life to the cure, and remedy, according to the true intent
of the Makers of the Statute. Co. 11. 73. b. & Co.
3. 7. |
Co. 3. 7.
& 12. 73. |
| Restitution. |
Others hold the contrary, sc. That lessee
for years, nor Copiholder,
or Tenant at will, could not have Restitution by the hands of the Justice
of Peace; and this seemed to be the common opinion. Their reason
was, |
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For that the words in the Statute of 8 H. 6.
(in that clause, which specially
provideth the Restitution) as thus. The said Justices, &c. shall
reseise
the Lands or Tenements, and thereof shall put the party so put out,
in full possession, &c. Which words [Lands or Tenements]
are only to be
understood of them that have Inheritance, or a Freehold at the least, |
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