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Forcible Entry, &c.
Justice of Peace, he may thereupon grant a Supersedeas to the
Sheriff. And
if Restitution were made by the Sheriff before the said Supersedeas
came to
his hands, then the other party shall have Restitution back again in the
Kings Bench, upon the Indictment removed thither. |
Chap. 133. |
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But for that Bills of Indictment of Forcible Entry
or Riots, being
found before the Justices of Peace are oftentimes removed by Writs of Certiorari
out of the Chancery or Kings Bench, by the means of the
person indicted,
by means whereof such offenders for the most part escape unprosecuted
and unpunished; (for that the party grieved will not undergo the
travel or charge, &c.) It is therefore Enacted (by the Statute
made 21 Jac.
cap. 8.) That all such Writs of Certiorari, shall now
be delivered at some
Quarter Sessions of the Peace, in open Court; and that the parties indicted,
before the allowance of such Certiorari, shall become bound unto
such person which shall prosecute such Bill of Indictment against them,
in
the Sum of 10 l. with such sufficient Sureties, as the Justices
of Peace, at
their said Quarter Sessions of the Peace, shall think fit, with Condition,
to
pay unto the said Prosecutors of such Bill of Indictment (within one month
after the conviction of such parties indicted) such Costs and Damages,
as
the said Justices of Peace in the said Sessions of the Peace shall assess
or
allow. And in default thereof, it shall be lawful for the said Justices
to proceed
to tryal of such Indictments, any such Writ of Certiorari to remove
the same Indictment notwithstanding. |
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" A Bill of Forcible Entry was found before Justices
of Peace, and
" Restitution awarded, but no executed; a Certiorari was delivered
to
" one of the Justices, who refused to open it without consulting with his
" Companions, and Restitution is made. This was moved in the Kings
" Bench, and the Restitution awarded, and the Justice of Peace
his, in
" the case of Fitz. Williams, Yelverton, p. 32. |
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§. 4.
Traverse. |
The tender of a Traverse (to an Indictment of Forcible
Entry, upon
the Statute of 8 H. 6.) is no Supersedeas, but in discretion,
so as the Justices
of Peace or Court (notwithstanding the Traverse rendred) may grant or
may stay the Restitution at their discretion, according to the truth of
the
right or title shall appear to them; And so is the use of the Kings
Bench,
Dyer 122. pl. 34. |
Dyer 122. |
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Or else the Justices of Peace (before whom the Indictment
was found)
may after Traverse tendred, certifie or deliver the Indictment into the
Kings Bench, or to the Quarter Sessions, and so refer the further
proceedings
therein to them. |
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But if the party indicted shall tender a Traverse
presently, whereupon
Restitution is stayed, and after he shall not pursue his Traverse with
effect (but discontinueth it) and after doth tender another Traverse upon
Restitution prayed at another time; the Justices of Peace or Court, shall
do well to proceed to grant Restitution, notwithstanding such Traverse
tendred. |
Cromp. 165. |
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And it is the Course of the Kings Bench, that
he that tendreth the
Traverse there (upon such an Indictment) shall bear all the charges of
the
Tryal, and not the King, nor he at whose Suit the Indictment was found:
And the same reason seemeth upon an Indictment traversed before Justices
of Peace. |
Ibid. |
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But upon a Forcible Entry found, and a Traverse
tendred, if the
Justice of Peace will try the Traverse, it seemeth they ought to use a
new
Jury to be returned (by the Sheriff before them) and in the same Traverse.
The which may be done the next day, but not the same day, Cromp. 150,
152. |
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