Chap. 132.
P. R. 38. |
Forcible Entry, &c.
To whom Restitution shall be made. CHAP.
CXXXII. V. 83.
THis Restitution ought to be made to him that was
put out, and to
none other; for so are the words of the Statute. |
315
§. 1. |
|
Therefore if the Father be out by Force, and dieth,
his Heir shall not
have Restitution; yet here the Justices may imprison, and fine the offenders:
For by such Forcible Entry they have broken the Peace. See antea,
in the other Title of Forcible Entry. |
|
| Lamb. 156. |
Also, if after the death of the Father, a stranger
abateth, or entreth
into his Land by Force, before the Heir hath gotten Actual Possession indeed,
the Heir shall not have Restitution, because he had but a possession
in Law, descended upon him. |
|
Fitz. 248.
b. |
The Disseisee doth put the Disseisor out with Force,
the Disseisor shall
be restored: For the Right or Title is not commonly disputable or
material;
but by words of the Statute, he that is in such sort (sc. forcibly)
put
out, shall be restored. |
|
| Dyer 122. |
Yet it seemeth in this case, That upon Traverse
tendred by the Disseisee,
and his Right appearing, the Justice of peace may stay Restitution.
See
hereof after under this Title. |
|
Br. Force
6. |
Also, if the Disseisor be restored again, yet the
Disseisee may after re-enter
peaceably, of have his Assize. Fitz. Entry 20. |
|
| Crom. 163. |
But if the Disseisee shall enter peaceably upon
the Disseisor, and so
they both shall abide and continue there together for divers days, and
after
the Disseisee doth put out the Disseisor with Force, and is thereof indicted.
Here it seemeth the Disseisor shall not be restored; for the Disseisors
possession
was avoided in quiet manner at the first Entry of the Disseisee,
and so the Disseisor had no possession in the Eye of Law when he was
put out. |
|
Crom. 262
& 164. |
If the Disseisee shall enter peaceably, the Disseisor
and his Family being
abroad, and after the Disseisee shall keep his possession with force, the
Disseisor shall not be restored, by reason of the eign Title of the Disseisee,
and for that he entred peaceably. See antea, in the other
Title of Forcible
Entry. |
|
|
But here the Disseisee shall be imprisoned and fined
for keeping his
possession with force; for Forcible Keeping or Detaining, is as well prohibited
as Forcible Entry. |
|
Crom. 164.
Fitz. li.
Assize 418 |
And here note, That the being of a Mans Wife, Children
or Servants,
in the House, or upon the Land, do preserve his possession; but his Cattel
being upon the Ground, &c do not preserve his possession. |
Possessions. |
Ltr. 140.
Perk. 45. |
Also when two are in possession of an House, &c.
and the one claimeth
by one title, and the other by another title, here the Law shall adjudge
him
to be in possession, who hath the best right to the possession: So
that if A.
shall wrongfully enter upon B. and they both shall continue
in the House,
and after B. shall put out A. with Force; A. shall
not be restored; for A.
never gained any possession by his Entry. |
|
Fitz. 249.
P. R. 36. |
Two Joynt-Tenants, or Tenants in Common, and one
of them doth
forcibly put the other out of his possession; he that is so expelled, may
have an Action of Trespass of Forcible Entry against his Companion, upon
the Statute of 8 H. 6. And thereupon he shall have a Writ
of Restitution
to restore him to his former Estate: But what the Justice of Peace
can
do herein, Quære, for that his entry and possession is lawful
through the
whole Land, in respect of his own moiety and state. See 8 E. 4.
8. |
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