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Forcible Entry, &c.
Two Joynt-tenants be put out by Force and one of
them only sueth
to have Restitution, Restitution shall be made unto him. |
Chap. 133. |
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Whether a Copiholder, Lessee for Years, or Tenant
at Will, shall have
Restitution. See before. |
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' And the Lessee for years, or a Copiholder, &c.
may pray, and shall
' have Restitution, as well as he in the Reversion, or the Lord. |
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If Lessee for years be put out of his Term by Force,
and die, though
after his death this Force be found by Inquisition, taken by a Justice
of
Peace; yet his Executors shall not be restored to that Land (by the Justice)
for that they are not the same person that was put out. |
P. R. 38. |
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" The particular Tenant, as Tenant for years, or
a Copiholder, shall
" be restored notwithstanding the Lord or Lessor (who have the Freehold)
" will wave it, or disagree to it as to themselves; and thereupon this
" case hapned. The Lord of a Manor commanded A. B. and C.
to enter
" with Force upon his Copiholder, which they did do, and an Indictment
" is preferred quod expulerunt the Copiholder, and disseised the
Lord which
" forced, and the Lord laboured that no Restitution should be made; for
" that, as was alledged, Restitution was to be made out of respect to the
" Freehold: Yet the Court granted Restitution to the Copiholder.
For
" the Court ought to reform the wrongs in their several degrees; and that
" is, to restore the Copiholder first who is expelled.. And so was
done, as
" was said by Justice Williams in the case of the Lord Norris
who withstood
" a Restitution to his Lessee. Sir Audley Nowels Case, Yelver.
p. 81. |
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" The words of the Statute of 21 Jac. 15.
are too strictly taken, and
" shall not be extended by Equity, and to that purpose this case hapned;
an
" Indictment of Forcible Entry, was Ad tunc exist. liber. ten. B.
ad voluntatem
" Domini secundum consuetudinem manerii. The party in
this case,
" could not be restored, because it is not said per Copiam rotulorum
cur. And
" it may be she was Tenant by the Verge, and not by Copy. But it
was
" holden, that a Copiholders Widow that held per bancum should be
restored.
" Lach, p. 182.
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§. 1. |
What Causes there may be for staying the Justice of Peace from
granting
Restitution. CHAP. CXXXIII. V. 84.
ALthough the party thus being indicted for a Force
shall not be heard
nor suffered to give his Title in evidence, to excuse himself of his
Forcible Entry or Detainer, to save his Fine due to the King for such
Force (which Fine he shall make, though his Right be never so good;) yet
to the Restitution (which the Complainant shall demand, if the Force be
found) the Defendant shall be heard to disprove the Title of the Complainant,
or what we can say otherwise for the stay of Restitution. Quære,
and
see before in the other Title of Forcible Entry. |
Lamb. 151.
Cromp.
162.
Br. Force
11.
Dyer 121. |
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Now the Defendant (or party indicted) for the stay
of Restitution,
may at the time of the Restitution to be made, plead or alledge any of
these
things following. |
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1. His quiet possession by three years together. |
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2. He may deliver to the Justices of Peace
or Court, a Certiorari. And
this is a Supersedeas to them. See the Statute of 21 Jac.
8. hereafter. |
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3. He may tender his Traverse; but Mr. Lambert
seemeth to doubt
whether the party may be admitted to his Traverse before the same Justices
of Peace. ' And he thinks it safer for the Justices to make Restitution,
notwithstanding
' the offer of Traverse, or rather wisheth the Justices to deliver, |
Lamb. 162. |
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