| Chap. 128. |
Forcible Entry, &c.
' defendant, the Force is excused: But the Force used in an Entry
into
' Lands or Tenements, is the material matter, and punishable, although
the
' Entry might have been lawful. |
309 |
|
Also, if there be an attempt made to disseise me
of my Land, or to
disturb me of my High-way, or to turn an ancient Water-course from my
Mill, I may lawfully use Force to resist it. See tit. Surety for
the Peace,
cap. 72. |
|
Dyer 327.
Crom. 68. |
A Keeper doth enter and chase upon my Land, pretending
this to be
within this Purliew, where it is not. If I command my Servants to
beat
him off my Ground, this seemeth justifiable in the defence of my possession,
against such unlawful Claim. Yet quære.
|
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8 H. 6. c. 9.
31 El. 11.
P. Force 4. |
Where Forcible Detainer of Possession is lawful.
CHAP. CXXVIII.
Vide 79.
THE Statute of 8 H. 6. concludeth thus, Provided
that such as keep
their possession by Force, after that they or their Ancestors, or they
whose Estate they have in such Lands, &c. have continued their possession
in the same three years or more, shall not be indamaged by force of that
Statute. |
§. 1. |
|
And by force of this Statute and Proviso, every
Heir, and every Feoffee,
may justifie to keep their Houses and Possessions by force, in that case
themselves,
or their Ancestors, or their Feoffors, or they whose Estate they have,
have been in peaceable possession thereof by the space of three years,
or
more. Cro. 187. |
|
12 H. 6. 6.
1. b.
Br. Force
6.
21 & 29
See the
Statute of
31 El. 11. |
Yet this Proviso must (as it seemeth) be thus construed,
sc. That where
a Man is seised (of a lawful estate or possession) of an House or Lands,
and
he or his Ancestors, or they whose Estate he hath therein, have continued
the possession of the same peaceably by the space of three whole years
together
without interruption (and his Estate not ended) there he may hold
and keep such possession with force, against all others; yea, it seemeth,
if
he shall hire strangers to aid him, to keep such possession, or shall have
his
company in Armor, he is not punishable by these Statutes: But he
may not
resist the Justices of Peace that shall come to view this. |
|
P. R. 37. |
And if he shall be indicted for such his forcible
holding (after three
years, such quiet possession) he may plead such his lawful and peaceable
possession, by the space of three years next before such Indictment, and
thereby he shall avoid both the Imprisonment and fines, and also shall
debar
the other party of his restitution. Neither may the Justices of Peace
remove him from his possession, though it be found by the Inquisition taken
before them that he held that House or Land by force, after three years
lawful and peaceable possession, as aforesaid. |
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But here it seemeth, that these four diversities
are to be observed: |
|
6 & 7 E. 6.
22 H. 6. 8.
Lamb. 65.
Br. Rest.
12. |
First, Where the party in possession did enter peaceably,
and where
forcibly: For if a Man enter forcibly, and after continue his possession
peaceably by the space of three years without interruption, yet (it seemeth)
he shall not be aided by these Statutes. |
§. 2. |
Br. Force.
12 & 39. |
Secondly, Where the party in possession hath continued
his three
years possession peaceably, and where by force. |
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|
For if after a lawful and peaceable entry, a Man
shall continue or
hold his possession by force, This is a Forcible Holding or Detainer, and
punishable by the Statute of 8 H. 6. And three years of such
possession
shall not aid him, as it seemeth. |
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