| Chap. 134. |
Restitution.
" Also after the Indictment of Force found, if a
Traverse be tendred,
" or whatsoever shall be alledged for the stay of Restitution, it ought
to
" be in Writing (and not verbal only,) for upon the Traverse. &c. a
" Venire facias must be awarded, a Jury returned, the Issue tried,
a Verdict
" found and a Judgment given, and Costs and Damages awarded:
" And they must have a Record, which must be in writing, to do all this,
" and not a Verbal Plea, Vid. 14 H. 8. 16. Fitz.
And all this must be
" done at the same Session, if it be desired; or else Restitution is to
be
" granted. Semble auxi que Pardon le Roy will discharge the
Forcible
" Entry or Detainer, and bar Restitution. |
319
§. 5.
Pardon. |
Yelverton,
p. 99. |
" And in the Case of Fawcet, H. 4 Jac.
the Forcible Entry was pardoned
" by a Parliament Pardon; and the Court was of opinion, Restitution
" could not be granted: For by the Pardon, the strength of the
" Indictment is gone, but there is a Remedy for the party by Suit, where
" he may be sure of the effect of it, And Justice Williams said,
That
" Thynne being indicted for an Entry by Force, upon the Lands of
the
" Lord Stafford, got the Kings Pardon, and pleaded it in Bar of
Restitution;
" and it was adjudged a good Plea.
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Restitution where is shall be granted. CHAP.
CXXXIV.
" IT is generally held and maintained as the Law,
and Course of the
" Court of Kings Bench, that Restitution is a thing in the discretion
" of the Court; and they will grant it, or deny it, as the Justice and
" Reason of the Case shall require: And therefore they will grant
it ordinarily
" in these Cases. |
§. 1. |
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" 1. If the Indictment removed, for any cause
appearing in the
" Body of it, or caption quashed. |
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" 2. If a Cert. hath issued, and the
same be not allowed, or proceedings
" stayed thereupon; but Restitution be granted after the allowance
" or tender of it. |
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" 3. If any indirect course be used to avoid
the effect of a Cert. as I
" remember this Case hapned. One P. having made a Forcible
Entry upon
" L. of Lands in W. And being threatned with an
Inquiry of a Force,
" he imployed one C. his Attorney to procure a Certiorari, and
gave the
" names of those that were most likely to be indicted: Which one
R. the
" Attorney of L. suspecting, by pretending himself to be the Attorney
of
" P. spake to the Clerk of the Crown Office, understood
the names of these
" for whom the Certiorari was intended to be made, and procured
an Inquiry
" by the Justices in the Country, and such to be indicted as the
" Certiorari was not for. So when the Certiorari came,
it was insignificant,
" and L. was restored. But this matter appearing in the Kings
Bench, H.
" 1658. Restitution was awarded. |
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" 4. If the Justices below shall misbehave
themselves and shall not allow
" the Plea of three years Possession well pleaded. |
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" But Restitution being as I said, a thing Discretional,
the Equity and
" Reason of the Case doth often incline the Court, not to grant it
" where they may do it, especially if the Party in Possession shall offer
to
" appear, and go to speedy tryal of the Rights; and so I have often observed
" it to be done. |
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