| Chap. 130.
Lamb. 481.
Br. Force
23. |
Forcible Entry, &c.
2. Also the Indictment ought to express the
quality of the thing entered
upon, &c. sc. Whether it be a Messuage, Cottage, Meadow, Pasture,
Wood or Land Arable: For if the Indictment be, that by strong hand
they did enter the Tenement, &c. It is void for the incertainty,
because the
word Tenement may extend to either of them. |
313 |
14 H. 6. 16.
Br. Force
13. |
3. Also the Indictment must have these words,
to wit, yet hold out,
otherwise the party shall have no Restitution; and yet these words be not
in the Statute: But without these words in the Indictment, it may
be supposed
and thought, that he which put me out, hath let the possession again,
or that I have gotten it again; and then the Restitution is needless. |
|
|
So as in every such Indictment, these words are
material, sc. Expulerunt,
& adhuc extra tenent. And for lack of either of these words,
no Restitution
shall be made or awarded. |
|
| Lamb. 145. |
4. Also one of these two words, with strong
hand, or with multitude,
seem to be material, in the Indictment; unless they be implyed by reciting
the Statute of 8 H. 6. and concluding, against the form of the Statute,
or
by some other words in the Indictment. See the Precedents herein. |
|
|
For the form to be used in these Indictments.
See more after tit. Indictments. |
|
| Crom. 162. |
If a Man shall be restored upon an insufficient
Indictment taken before
the Justices of Peace; and this be removed in the Kings Bench, the
Court
there will cause the party to be restored, that before was put out by the
Justices of Peace. |
|
Cromp.
165 & 166. |
5. Also if Error or Insufficiency be in the
Indictment, taken before the
Justices of Peace, and yet a Precept or Writ of Restitution is awarded
by
them, any two of those Justices of Peace, which were present at the
taking of the said Indictment, upon the Prayer of the party, may (at another
Sessions, or out of the Sessions) grant and award a Supersedeas to
the
Sheriff, to stay the same Restitution, if the Sheriff had not made Restitution
before the Supersedeas came to his hands. |
|
| Dyer 187. |
But no other Justice of Peace (besides those which
were present at the
taking and finding of the said Indictment) can grant a Supersedeas,
if the
Indictment were found at a special Sessions. ' And if it were found
at the
' Quarter Sessions, yet the Supersedeas shall be granted under the
Teste of
' one of those Justices only which were present at the finding of the Force.
' Ibidem. |
|
Cromp.
165. |
A Man is indicted that he entred with Force, and
held with Force
and upon the Traverse, it is found that he entred with force but not that
he held with Force; yet this Indictment seemeth good enough, and the
party shall be restored. |
|
| Ibid. |
So two are indicted of a Forcible Entry and Detainer,
and upon the
Traverse, it is found, That the one entred with force, and the other held
or detained with force, yet the party shall be restored. Br. Force
15. |
|
| Crom. 166. |
If it be found by one Inquest, that A. put
me out by force, and by
another Inquest, that I did put out A. by force, either of us may
pray to
have Restitution against the other: But he that is first restored
is in the
worst case; for the other may have Restitution afterwards, and then he
that had Restitution first, is without remedy, by the hands of the Justices
of Peace; saving that he may re-enter, if he can peaceably, or have
his
Action. Br. Force 6. |
|
|
If it be found by one Inquest, that A. put
me out by Force, and by another
Inquest taken at the same Sessions, that B. did put me out by force,
I may chuse upon whether of these Indictments I will be restored:
And if
I have Restitution against A. and this be returned, I cannot have
Restitution |
§. 3.
Several Indictments. |
E e
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