| Chap. 44. |
Forcible Entry.
The form of a Precept to the Sheriff to return a
Jury; vide hic. |
83 |
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The form of the Enquiry, Presentment or Verdict.
See hic. |
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7. And if upon such Enquiry such Forcible
Entry (or Forcible holding,
or Detainer) shall be found by the Oaths of the Enquirers, then the said
Justice of Peace shall reseize the Lands and Tenements so entred upon or
holden, and thereof put the party in possession again, who in such sort
was
put out or holden out. See the other Title of Forcible Entry. |
§. 9.
Restitution. |
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But the putting out, as also the holding out, must
of necessity be found
and that by express words in the Indictment. See as before. |
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And so note, that the Justice or Justices of Peace,
recording only the
Force by his or their view, may not put the party put out into his possession
again, but the Justice must first make Enquiry thereof by Twelve men
of the County at a special Sessions by the said Justices to be holden;
and
then the Force being found by the said Jury, the said Justice or Justices
may put the party so put out into his former possession. |
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And this Restitution the Justice of Peace may make
himself; or he
may make his Warrant to the Sheriff to do it: or else he may certifie
such
Presentment or Indictment taken before him, into the King's Bench, and
so leave the Restitution to be awarded out of that Court. See as
before. |
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Co. 9. 118.
Co. 11. 65.
7 E. 4. 18. |
But the Justices of Assize and Gaol-delivery, nor
the Justices of Peace
at their General Sessions, cannot (as it seemeth) make or award Restitution,
except the Indictment were found before them; but the Justices of
Peace only, or some of them, that were present at the Enquiry, and when
the Indictment was found, they only have power to make Restitution;
except notwithstanding the Justices of the King's Bench, who have a supream
Authority in all cases of the Crown. |
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And therefore if the Record, sc. the Presentment
of such Force, shall be
delivered by the Justices of Peace into the King's Bench, or that the same
Presentment or Indictment shall be removed and certified thither by Certiorari,
there the Justices of the King's Bench may award a Writ of Restitution
to the Sheriff of the same County, to restore possession to the party
so expelled. |
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| P R. 41. b. |
After it is found by such Enquiry, that such Forcible
Entry or Detainer
is made, the Justices of Peace may break open the house by force, to reseize
the same, and to put the party, so put out, in possession again.
And
so may the Sheriff do, having the Justices Warrant. |
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The form of such Warrant from the Justice of Peace
to the Sheriff to
make Restitution. See in the other Title, Forcible Entry. |
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But the Justice of Peace may not (in any case) make
a Restitution without
such Enquiry first had, and such Force thereby found: and if the
Justice shall make Restitution without Enquiry, it seemeth to be punishable. |
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Also this Restitution ought to be made to none,
but to him only that
was put out; so that if the Father be put out by Force, and dieth (after
Enquiry, and before Restitution,) his Heir shall not have Restitution. |
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To whom Restitution shall be made. See the
other Title, Forcible
Entry. |
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Also such Restitution must be made only, where a
man is put out, or
holden out, &c. Of House or Land, and is not to be understood
of a
Rent, Common, Advowson, or such like. See the other Title, Forcible
Entry. |
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Also the Justice may make Restitution, notwithstanding
any offer or
Traverse: but yet upon Traverse tendered, the safest way (for the
Justice
of Peace) seemeth to be for him to deliver or certifie the Presentment
into |
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