Chap. 126.
Rast. 174. |
Forcible Entry, &c.
But to this it may be answered, That the said Statute of 8 H. 6.
(in the
Body thereof) hath these words, Where any do make any Forcible Entry
into Lands, Tenements or other Possessions, or them hold Forcibly,
&c.
Which words [Possessions] extendeth to a Lease for years, &c.
And then
the word [Possessions] being in the same Statute, we shall find
that a Statute
is to be expounded upon all the parts thereof together, and not upon
one part alone by it self. To which purpose, see Lincoln Colledge
Case, and Doctor Bonhams Case in Sir Edw. Cokes Reports. |
305 |
Co. 3. 59. b.
& 3. 116.
Cromp.
161. |
But it seemeth to those which held this last opinion,
That if a Lessee
for years, Tenant at will, or a Copiholder, be Forcibly put out, or held
out by any stranger, if they will have restitution, their Indictment must
find that the Lessor or Lord of such Copihold, is disseised, and the
Lessee
or Copiholder, is put out with Force. And hereupon the Lessor or
Lord
shall have Restitution; and so by their Restitution, their Lessee or Copiholder
is restored also: But such Lessee or Copiholder cannot (say they)
prefer an Indictment in their own name, upon the Statute 8 H. 6.
for that
they have no Freehold. |
|
Cro. 249.
1. |
And to that purpose I find some Precedents of Indictments
in this form,
That is to say, Into one Messuage at, &c. then being the Freehold of
M.
D. Esquire with Force and Arms, &c. with strong hand, and unlawfully
upon the possession of J. L. then Farmer of the said M. D. the
said Messuage
did enter, and him the said J. L. with Force, and Arms, and strong
hand, and unlawfully then did from thence expel and put out, and the
said M. D. thereof unjustly Disseise, &c. See after tit.
Precedents. |
|
|
Also by this opinion, if the Lessee for years be
put out by his Lessor,
and after the Lessee putteth out the Lessor again Forcibly, the Lessee
shall
not be indicted; neither shall the Lessor have Restitution upon this Statute,
for that the Lessor is not ousted nor disseised of his Freehold; For
the possession of the Lessee is such a Seisin of the Lessor of his Freehold,
that he may have an Assize if his Lessee be put out. |
|
| Cromp. 72. |
And so of a Copiholder, not having forfeited his
Estate, if his Lord
notwithstanding shall enter upon him, and put him out, and the Copiholder
shall re-enter upon his Lord with Force, the Copiholder shall not be indicted,
nor yet the Lord restored, for the reason aforesaid. |
|
|
And so by this last opinion, the very mischief specified
and intended to
be helped by these Statutes, should seem still to remain in all cases between
such Lessees and Copiholders, and their Lessors or Lords, so as there can
be no Inquiry or Restitution in cases of Forcible Entry or Detainer between
them. |
|
|
But howsoever the Law be taken for the Indictment
or Restitution
thereupon, yet in case that Lessee for years, Tenant at will, or a Copiholder,
be Forcibly put out or held out, either by a stranger, or by
their Lessor or Lord, the Justice of Peace, or any one of them, by the
Statute of 15 Rich. 2. cap. 2. might safely remove the Force,
and upon
view thereof commit the Offenders to prison; and then the Lessee for
years or Copiholder, might presently re-enter, if peaceably they would
so do, and so might have his possession again, without any Restitution
made him by the Justices. |
|
D d 3
|
 |
