| Chap. 133. |
Forcible Entry, &c.
' or certifie the Presentment into the Kings Bench, and so to
refer the further
' proceeding to them, &c. See here after. |
317 |
|
4. He may plead the insufficiency of the Indictment.
See Paulo
antea. |
|
|
5. He may plead the insufficiency of any of
the Jurors, sc. for not
having forty shillings Freehold Land per annum, ' and must not be
Ancient
' Demesn or Copihold, but Charter Lands.' And in this case Mr. Marrow
is of opinion, That the party shall have no Restitution. Yet
Mr. Lambert
and Mr. Crompton seem to be of the contrary opinion. Lamb.
155. Cromp.
165. Ideo quære. |
|
|
And it seemeth (by the opinion of Mr. Lambert,)
That the Justices of
peace ought not to stay Restitution, save only, either by alledging three
years quiet possession, or by removing the Record and Presentment into
the Kings Bench by a Certiorari, Lamb. 165. |
§. 2. |
| 35 El. 11. |
For the First, there shall be no Restitution awarded
(upon any Indictment
of Forcible Entry, or holding with Force) where the party indicted
hath been in quiet possession by the space of three whole years together
next before the day of such Indictment found, If his Estate be not ended;
and this the party indicted may alledge to stay the Restitution, and the
Restitution upon this shall be staid by the Justice of peace, until it
be tried,
if the other party will deny or traverse the same. And if the same
allegation
be tryed and found against the party indicted, then shall he pay such
Costs and Damages to the other party, as shall be assessed by the Justices
before whom the same shall be tried; the said Costs and Damages to be recovered
and levied notwithstanding by the course of the Common Law.
31 Eliz. 11. |
Three years
Possession. |
Cromp.
164.
P. R. 37. |
Also if a Man who hath made Forcible Entry or Detainer,
be in doubt
that he shall be indicted thereof before the Justices of peace, (upon the
Statute of 8 H. 6) and that thereupon Restitution will be awarded
against
him, he may have a Writ of Certiorari out of the Kings Bench
ready, and
when the Bill of Indictment in found, he may presently deliver it to the
Justice of Peace or Court. And this is Supersedeas to them
for to stay the
Restitution; for that upon this Writ, the said Indictment shall be removed
from them into the Kings Bench. |
§. 3.
Certiorari. |
|
And although the Indictment be found after the Teste
of the Certiorari,
it is not material, for they be both the Kings Courts, &c. |
|
6 H. 7. 16.
Lamb. 198. |
But if a Certiorari cometh to the Justice
to remove an Indictment of
Forcible Entry taken before the Justice of peace in the Country, and the
party will not sue to remove it, but suffereth it to lie still, the Justice
of
peace may proceed to grant Restitution, notwithstanding the Writ, as
Hobart the Kings Attorny said in 6 H. 7. But Keble
held opinion against him;
and it seemeth rather, that the Justice of peace ought Ex Officio, to
send the
Indictment away, because they are commanded so by the Writ. And this
Writ is a Supersedeas of it self to the Justices of peace, to stay
their proceedings:
And if they shall proceed after, it is erroneous. Br. Judges 17. |
|
| Crom. 162. |
After Restitution made by the Justice of peace,
if the other party
doth remove the Indictment by a Certiorari of a more eign date,
than is the
Indictment, the Justice of the Kings Bench may award Restitution
back
again: For upon the matter, the Justice of peace had no power to
make
Restitution, for that the Certiorari hath relation from the date
thereof. |
|
| Ibid. |
After Resitution granted from the Sessions, and
delivered to the Sheriff,
the other party having a Certiorari, delivereth it also unto the
Sheriff
after the Sessions; the Sheriff shall not surcease thereupon (for he hath
no
authority to allow thereof.) But if the Certiorari were delivered
to any |
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