refuse to receive felons or shall take any thing for the receiving of them this by the statute of 4. of Edw. 3. ca. 10. is punishable by fyne and imprisonment 7. If any Coroner In Coroners shall exact more Fees for taking an Inquisition super visum corporis of one that is murdred or killed then thirteene shillings foure pence which is to be paid of the goods of the offendor or of the Towneship where the offence was committed in the day time if the offendor have escaped for this offence the Coroner by the statute of 3. H. 7. 3. H. 7. ca. 1. shall forfeit 5. l. 8. If Ordinaries or their officers shall take more Fees for the probate of Testaments or granting letters of administration then is appointed for them to take by the statute of 28. H. 8. cap. 18. in Ireland the offendors herein shall for every of their offences by force of the said statute incurre the penalty and forfeiture of 10.l 9. If any Clearke of the peace In Clearks of the peace take above j.s. for the inrolling of a bargaine and sale where the land doth not exceed forty shillings per annum and where it exceedeth that summe ij.s. vj.d. by a statute made 10. Caroli cap. 1. in Ireland he is to be punished by fyne and imprisonment 10. If the Clearke of the market In Clearks of the market take any common fyne or other reward to dispence with offences or tarryeth any longer in the Country then the necessity of the businesse requireth by the stat of 13. R. 2. cap. 4. he is for his first offence to be fyned in 5.l for his second in 10.l and for his third offence in 20.l 11. If Mayors In Mayors c. and chiefe officers of Townes and Corporations take excessive Fees for sealing of waights and measures that is to say for sealing of every bushell more then a penny for every other measure more then a halfe penny for every hundred waight more then a penny for every halfe hundred more then a halfe penny and for every weight under more then a farthing by a statute made in 7. H. 7. ca. 3. they are for every such offence to be fyned in 40 s 12. If any Purveyor In Purveyors take any bribe or reward to spare any man or take Corne by any other measure then the striked bushell or take carriages without ready payment by the severall statutes of 15. Ed. 3. cap. 1. 36. Ed. 3. cap. 3. and 1. H. 5. cap. 10. he is to be punished by two yeares imprisonment and ransome and to pay treble damage to the party grieved 13. If Iurors In Iurors take any thing to make their presentments favourably by the statute of 5. Ed. 3. cap. 10. they are to bee punished by imprisonment and ransome 14. If any person shall get into his possession any mony or other goods by any false token By false tokens or counterfeit letter this is a misdemeanor at the common Law to be punished by a great fyne and imprisonment and to be bound to the good behaviour and by a statute made in England in 33. H. 8. ca. 1. which is not in force in Ireland he is to be punished by imprisonment of his body standing upon the pillory or otherwise by any corporall paine except paines of death as shall be upon him adjudged or appointed by the person or persons before whom he shall be convict of the said offences or of any of them 15. If any person shall packe fish deceitfully mixing small fish with the countable fish by a statute made in 22. Ed. 4. ca. 2. he is to be fyned for every vessell so deceitfully packed vj.s. viij d 16. If any Cowper By Cowpers shall make vessels for Beere or Ale of unseasonable timber this is a misdemeanor at the common Law punishable by fyne and imprisonment 17. If any Miller By Millers shall take Toll by the heape he is to be punished by fyne and imprisonment and likewise if he take more then the twentieth or foure and twentieth part he shall be punished in manner aforesaid by the statute of 31. Ed. 1. called the statute of Bakers and Brewers c. 18. If any man shall buy any pretended title By buying of pretended titles to any lands or tenements the seller being out of possession by a statute made in Ireland 10. Caroli aswell the buyer as the seller shall forfeit the whole value of the lands so contracted for and also be imprisoned 19. If any person shall mainetaine any suit in any Court By maintenors or any quarrels in the Countrie he is to be punished by Fyne and imprisonment by the severall statutes of 1. Ed. 3. ca. 14. and 1. R. 2. c. 5. 20. If any person shall move pleas or suites By Champerty or cause them to bee moved either by their owne procurement or by others and sue them at their proper Costs for to have part of the Land in variance or part of the gaine to be recovered by such suites such persons by the statute of 33. Ed. 1. Rastal Champertie 5. are declared to be Champertors and are to be punished in manner following that is to say that if any shall by covenant or contract give up his right to another by way of Champertie the taker of such gift shall forfeit so much as doth amount to the value of the thing that he hath so acquired 26. Ed. 1. Articuli super Chartas cap. 11. And by the statute of 20. Ed. 1. Rastall Champertie 3. hee shall be imprisoned by the space of three yeares and if any shall receive any Church Advowson land or Tenement in Fee or to farme so long as the thing is in plea aswell the party that selleth as he that purchaseth the same shall be punished by Fyne and imprisonment by the statute of Westminster the 2. cap. 49. 21. By subornation If any person shall suborne or procure another to give false testimony upon his oath in any cause depending in any of the Kings Courts or ad perpetuam rei memoriam this offence is subornation of perjurie for which the offendor shal be fined in 40.l and if he be not worth so much then to have halfe a yeares imprisonment and to stand upon the pillory and his testimony for ever to be disabled 28. Eliz. cap. 1. in Ireland 22. If any person shall wilfully and wittingly foresweare himselfe in any Court of Record this is perjury By perjury for which the offendor is to be fyned in xx.l. and six moneths imprisonment and if he have not goods to that value to be set upon the pillory and both his eares nailed to the same and his testimony forever to be disallowed 28. Eliz. ca. 1. in Ireland By forestalling 23. If any person or persons shall buy any Corne Fish or other things comming by land or water to any market to be sold these are forestallers
levied upon the husband for the husband shall never be charged for the Act or default of his wife but when he is made a party to the action and judgement given against him and his wife Co. 9. 72. Co. 11. 61. 2. H. 7. 16. 5. Diverse doe enter with force to the use of A. who is not then present with them but doth after agree thereto this agreement after maketh A. to be a disseisor Br. force 25. but not to be punished for the force and if A. had counselled consented or agreed thereto before the Entrie yet it seemeth that a commandement consent or agreement before or after though it may make one a disseisor yet it is not to be punished by the Iustice of peace upon these statutes Consent for that a forceible Entrie cannot be adjudged against a man without an actuall Entrie be also made by him or that at least he be present 6. But if A. that shall command or counsell others thereto shall also be present at the time of the Entrie Dalton 182. although he doth then nothing yet he is now become a principall and punishable by these statutes 7. If diverse doe come in one company to enter into lands c. where their entry is not lawfull Dalton 183. and all of them saving one did enter and demeane themselves in peaceable manner and one only doth enter with force or after entry made doth use force and violence this shall be adjudged a forceible Entrie in them all although the force were against their wils Co. 9. 67. 112. 11. 5. for where diverse doe come in one company to any place to the intent to doe any unlawfull thing be it robbery homicide ryot affray or any trespasse here every one of them shal be adjudged a principall doer although they stand but by and doe nothing So it seemeth though some of them come without any intent of evill if they came together in company with the other offendors or if they came after yet if they be either ayding or countenancing to the offendors they shall be also adjudged principall doers aswell as the other 8. An Indictment upon the statute of 8. H. 6. for the King The personâ— put out Co. 1. 46. 10. 112. is not good for the King cannot be disseised nor put out of his freehold neither can the King bring any action upon the statute of 8. H. 6. nor any other action which might prove him out of possession of the land 9. And if the K. termor be put out by force The Kings Tenant Dalton 183. Cromp. 69. he cannot preferre a bill of indictment upon the statute of 8. H. 6. that he was put out and the King disseised But he must have an Information of Intrusion in the Exchequer 10. Dalton 183. Yet it seemeth that upon complaint made to a Iust of peace by the K. termor of any such force the Iustice of peace ought to remove the force and upon his view thereof to record it and to commit the offendors to prison and may fine them and after such force removed the Kings termor may presently reenter if he can in peaceable manner 11. If a forceible entry Lesseâ— for yeares Coppiholdâ—â— or deteiner shall be made upon any Lessee for yeares Tenant at will or upon a Coppiholder whether it be by an estranger or by the lessor or by the Lord the Iustices of peace upon their view thereof are to remove such force Dalton 183. and may commit to prison the parties which made such entry or which shall hold it with force and may fine them but whether the Iustice of peace may make such restitution and set them sc the Lessee for yeares Tenant at will or Coppiholder into their possessions againe hath beene much questioned But now by a statute made in Ireland in 10. Caroli ca. 13. restitution shall be made to Tenant for yeares Tenant at will Coppiholder Tenant by Elegit or statute merchant or of the staple 12. Some held opinion that before this statute the Iustice of peace may put them in possession againe and of this opinion was Maister Marrow and Maister Lamb. and to maintaine this opinion these reasons may be given 1. First for that the words of the statutes seeme to warrant it for the statute 15. R. 2. in the Preamble thereof as also the stat 8. H. 6. in the body thereof hath this word possessions which word most properly doth extend to a lease for yeares c. 2. Again that clause of the stat 8. H. 6. which provideth for the restitution is thus if it be found that any doth contrary to this statute then the said Iustice c. shall put the party so put out in full possession c. 13. Now it cannot be denied but that he which by force expulseth Lessee for yeares tenant at will or a coppiholder doth contrary to this statute also they bee the parties put out and the same mischiefe and inconvenience which these lawes do labour to remove is to Lessee for yeares tenant at will and to the coppiholder Co. 11. 33. 34. Plo. 178. And we may finde it usuall that where statutes are made for to remedy any common mischiefe there to help things in the same degree one action thing place and person hath in construction beene taken for another and a good expounder saith Sir Ed. Co. 11. 34 maketh every sentence to have his operation to suppresse all the mischiefes before the said Act and principally those that are specified in these acts Co. 3. 7. 12. 73. 14. And againe saith he it is the office of the Iudges alwaies to make such construction of statutes as may represse the mischiefe and advance the remedie and to suppresse all evasions which may continue the mischiefe and to adde force and life to the cure and remedy according to the true intent of the makers of the statute Co. 11. 73. b. Co. 3. 7. 15. Others held the contrary sc that Lessee for yeares nor a coppiholder or tenant at will cannot have restitution by the hands of the Iustice of Peace and this was the common opinion their reason is for that the words in the statute of 8. H. 6. in that clause which specially provideth for the restitution are thus The said Iustices c. shall reseise the said lands or tenements and thereof shall put the party so put out in full possession c. which words lands or tenements are only to be understood of them that have inheritance Rast 174. or a freehold at the least but to this it may be answered that the said statute of 8. H. 6. in the body thereof hath these words where any doe make any Forceible Entry into lands tenements or other possessions or them hold forceibly c. which words possessions extendeth to a lease for yeares c. And then the words possessions being in the same statute we shall find that a statute is to bee expounded upon all the parts thereof
together Co. 3. 59. b. 8. 117. and not upon one part alone by it selfe to which purpose see Lincolne Colledge case and Doctor Donhams case in Sir Edw. Cokes Reports 16. But it seemeth to those which hold this last opinion that if a Lessee for yeares Tenant at will or a Coppiholder be forceibly put out or held out by an estranger if they will have restitution their indictment must be made and preferred in the lessor or Lords name Cromp. 161. and the Iury must find that the Lessor or Lord was disseised c. and then the Lessor or Lord shall have restitution And so by their restitution their Lessee or Coppiholder is restored also But such Lessee or Coppiholder cannot say they preferre an indictment in their owne name upon the statute 8. Hen. 6. for that they have no Freehold Cromp. 249. 2. 17. And to that purpose I find some presidents of indictments in this forme viz. in unum messuag apud c. adtunc existent liberum tenementum M.D. armiger vi armis c. Manuforti illicitè tunc inde expulerunt ejecerunt pref M.D. inde injuste dissesiverunt 18. And by this opinion if a Lessee for yeares tenant at will or a Coppiholder be forceibly put out by their Lessor or Lord such Lessee or Coppiholder hath no remedy at all by indictment upon this statute for they have no Freehold and therefore can have no restitution upon this statute 19. Cromp. 71. Also by this opinion if the Lessee for yeares be put out by his Lessor and after the Lessee putteth out the Lessor againe forceibly the Lessee shall not be indicted neither shall the Lessor have restitution upon this statute for that the Lessor is not ousted nor disseised of his Free-hold for the possession of the Lessee is such a seisin of the Lessor of his Freehold that he may have an Assise if his Lessee be put out And so of a Coppiholder not having forfeited his estate if his Lord notwithstanding shall enter upon him and put him out and the coppiholder shall reenter upon his Lord with force the Coppiholder shall not be indicted nor yet the Lord restored causa qua supra 20. And so by this last opinion the very mischiefe specified and intended to be helped by these statutes should seeme still to remaine in all cases betweene such Lessees and Coppiholders and their Lessors or Lords so as there can be no inquiry nor restitution in cases of Forceible Entry or detainer betweene them 21. But howsoever the law be taken for the indictment or restitution thereupon yet in case that Lessee for yeares tenant at will or a Coppiholder be forceibly put out or held out either by a stranger or by their Lessor or Lord the Iustices of Peace Cromp. 71. or any one of them by the statute 15. R. 2. ca. 2. may safely remove the force upon view thereof and may commit the offendors to prison and then the Lessee for yeares or Coppiholder may presently reenter if peaceably they can so doe and so may have his possession againe without any restitution made him by the Iustices 22. But these statutes are now by a statute made in 10. 10. Caroli c. 1â—â— in Ireland Caroli clearely explained which statute ensues in these words viz Whereas there is one good Act made and established in England in the eight yeare of the raigne of King Henry the sixt against such persons as should make forceible Entries into lands tenements and other possessions or them should forceibly hold and one very good proviso or clause in the said Act contained as ensueth viz. Provided alwayes that they which keepe their possessions with force in any lands and tenements whereof they or their ancestors have continued their possession in the same by three yeares or more be not endamaged by force of the said statute And whereas diverse of the Kings Majesties good and loving Subjects and their Ancestors or those whose estate they have for many yeares together above the space of three yeares or more have beene in quiet possession of their dwelling houses and other their lands and possessions and now of late divers of his Majesties said Subjects having Entries made upon their possessions having had such quiet and long possession for disturbing of such Entries and for keeping of their possession against such enterers by colour of Indictments of forceible Entrie or forceible keeping possession found against them by meanes of the oathes of such enterers have beene removed and put out of their dwelling houses and other their possessions which they have quietly held by the space of three yeares together or longer time next before such indictments found against them against the true meaning and intent of the said proviso or clause contained in the said Act for remedy of which inconvenience and for true declaration and explanation of the Law therein be it ordained declared and enacted by the authority of this present parliament that no restitution upon any indictment of forceible Entrie or holding with force be made unto any person or persons if the person or persons so indicted hath or have had the occupation or hath or have beene in the quiet possession by the space of three whole yeares together next before the day of such indictment so found and his her or their estate or estates therein not ended nor determined which the party indicted shall and may alledge for stay of restitution and restitution to stay untill that be tryed if the other will deny or traverse the same And if the same allegations be tryed against the same person or persons so indicted then the same person or persons so indicted to pay such Costs and damages to the other party as shall be assessed by the Iudges or Iustices before whom the same shall be tryed the same Costs and damages to be recovered and levyed as is usuall for Costs and damages contained in Iudgement upon other Actions And be it further enacted by the authority aforesaid that such Iudges Iustices or Iustice of peace as by reason of any Act or Acts of Parliament now in force are authorized and enabled upon enquiry to give restitution of possession unto the Tenants of any estate of Freehold of their lands or tenements which shall be entred upon with force or from them withholden by force shall by reason of this present Act have the like and the same authority and ability from henceforth upon indictment of such forceible Entries or forceible withholding before them duely found to give like restitution of possession unto Tenants for Terme of yeares Tenants by Coppy of Court Roll Guardians by Knights service Tenants by Elegit Statute Merchants and Staple of lands or tenements by them so holden which shall be entred upon by force or holden from them by force And be it further enacted by the authority aforesaid that all
conteined in the statute of provisors made in 27. Ed. 3. by the same processe comprised in the said statute and by warning to be made to them in their benefices or other their possessions within the Realme 8. After this in anno 12. R. 2. ca. 15. another statute was made to this â—ffâ—â—â— that is to say that no liege man of the King of what estate or conditiâ—n that he be 〈◊〉 over sea great or litle shall passe over the sea nor send out of the Realme of England by license nor without license without speciall license of the King himselfe to provide or purchase for himseâ—fe a benefice of holy Church with cure or without cure in the said Realme and if any doe and by vertue of such provision accept by himselfe or by any other any benefice of the same Realme that from that time the same provisor shall be out of the Kings protection Protection and the same benefice voide Voide so that it shall be lawfull to the patron Patron of the same benefice aswell spirituall as temporall to present Present to the same an able Clarke at his pleasure 9. Moreover in anno 16. R. 2. ca. 5. it is ordeined by Parliament at the prayer of the commons Sue that if any purchase or pursue or cause to be purchased and pursued in the Court of Rome Court of rome or elsewhere any such translations processes and sentences of excommunication bulles Bulles instruments or any other thing which touch the King against him his Crowne and regalitie or his Realme and they which bring within the Realme or them receive or make thereof notification or any other execution within the same Realme or without that they their notaries procurators Procurators mainteinors Mainteinors abettors fautors and Counsellors shall be put out of the Kings protection Protection and their lands and tenements goods and chattels forfeite to the King Forf and that they be attached by their bodyes if they may be found and brought before the King and his Councell there to answere to the cases aforesaid or that proces be made against them by praemunire facias Praemunire facias in manner as it is ordeined in other statutes of provisors and others which doe sue in any other Court in derogation of the regalitie of our soveraigne Lord the King 10. In anno 2. H. 4. ca. 4. it is ordeined that aswell they of the order of Cisteaux as all other religious or Seculars of what estate soever that they be which doe put any of the popes bulles Bulles in execution or from thenceforth doe purchase other such bulles of new or by colour of the same buls purchased doe take advantage in any manner proces shall be made against them and every of them by garnishment of two moneths by writ of praemunire facias Praemunire facias and if they make default or be attainted Forf then they shall incurre the paines and forfeitures conteined in the statute of provisors made in anno 16. R. 2. 11. In anno 7. H. 4. ca. 6. it is ordeined that no person religious nor secular of what estate or condition that he be by colour of any buls conteining priviledges to be discharged of dismes pertaining to parish Churches prebends hospitals or vicariges purchased before the first yeare of King Richard the second or after not executed shall put in execution any such buls so purchased or any such buls to be purchased in time to come and if any such religious Religious or secular person from thenceforth by colour of such buls Disturbe doe trouble any persons of holy Church prebendaries keepers of hospitals or vicars so that they cannot take nor enjoy the dismes due or appertaining to them of their said benefices that then such disturber shall incurre like procâ—sâ—â— and paine Paine as is ordained by the statute made against them of the 〈…〉 of Cisteaux in the second yeare of the Raigne of King Henry the 〈◊〉 32. H 6. ca. 1. in Ireland 12. Anno 32. H. 6. in Ireland it is ordained and established that all the acts ordinances and statutes made against provisors aswell in England as in Ireland be had and kept in force within this land of Ireland and also if any provisor or provisors doe henceforward sue any provision upon any man beneficed in this land of Ireland and because of the provision do enter into any benefice or benefices of the Church and doe take any goods or chattels from any beneficer of the church against whom any such provisions are sued that then the party grieved may recover treble damages and hee that taketh such goods and thereof is convicted shall pay 20. l. the halfe to the King and halfe to him that will sue 13. Anno 7. Ed. 4. it is ordeyned and enacted that whatsoever manner man of holy church purchase any manner of dignity 7. Ed. 4. ca. 1. in Ireland parsonage or vicarage by Buls of the pope to hold in commendum and the said Buls dignities parsonages or vicarages accept that they shall be out of the protection of the King and forfeit the value of the said benefices during his life naturall notwithstanding whatsoever his benefice be dignity or personage or vicarage and shall incurre in all penalties of the estatutes or ordinances made against provisors of benefices and that no pardon or license of the King made or to be made be availeable but voide if it be not by Act of Parliament and if any manner man of the Church occupy now or hereafter doe occupy any personage or vicarage by way of commendum by the Buls Apostolique if it be of his owne collation that he shall make collation thereof within six moneths and if he doe not that then the deane and chapter of the diocesse in which diocesse the benefice is shall make collation of the said benefice within six moneths then next ensueing and if the said Deane and Chapter be negligent and make no collation of the said benefice within six moneths as before is said that then it shall be lawfull to the King to present to the said benefice for that time and as often as the cases require as is aforesaid 14. Anno 10. H. 7. it is enacted and established that all manner of estatutes aswell made within the Realme of England as within this land of Ireland against provisors by the authority of this present Parliament be authorished 10. H 7. ca. 5. in Ireland approved and confirmed and be deemed good and effectuall in the Law and also by the authority aforesaid that all and every of the statutes made against provisors be from henceforth duely and straightly executed in all points within the said land according to the effect of the same and the Kings Iustices and Commissioners of the said land diligently enquire at their Sessions and all other times requisite and behovefull of all and every manner
would beat his servant Pr. 5. f. Iustifie 3. but the master with a sword staffe or other weapon may defend his servant assaulted from being beaten in respect of the losse of his service yet Master Lambert and Master Crompton are of opinion that the master may beat another in defence of his servant Cromp. 136. which seemeth to be the better opinion by reason of the losse which the Master shall sustaine by the wounding of his servant 36. Lamb. 131. But the farmour or tenant cannot justifie such an Act in defence of his landlord nor a Citizen c. in defence of the Maior or Bailiffes of the Citty or Towne corporate where he dwelleth unlesse it be in the legall execution of their offices 37. 9. Ed. 4. 28. 19. H. 6. 31. 63. Li. intr 611. In defence of my goods Also the Law doth tollerate a man to beate another for the preservation of his goods and therefore he that shall attempt by force and violence to take away my goods wrongfully from me whether they bee goods whereof I have a lawfull property or such goods whereof I have only a possession by the bailement of another I may justifie to defend the same by force and if I shall beat or hurt such person it is no breach of my recog for the peace but if I kill him it is felony and then a breach of the recog 38. The same Law is in every case 10. Ed. 4. 6. 3. H. 4. 9. 11. H. 6. 33. where another shall attempt by force and violence to take away my land freehold copihold or lease or to stop and turne my lawfull high way or my ancient river or water course leading to my mill in these and like cases if I shall disturbe him therein whereupon he doth assault and attempt to beat me I may justifie to beat him againe aswell in defence of my person as of my possessions but not to kill him 39. The same Law is also in every case where any offendour is by order of Law punished by whipping stocks pillory or otherwise for any offence by him committed contrary to the Lawes or statutes of this Realme there is no peace broken nor any recog of the peace forfeited by him or them which shall lawfully execute any such punishments 40. Note further that there are diverse offences for which an indictment contra pacem will lye and yet the committing of such offence shall be no forfeiture of the recog for the peace for that the Act that shall breed a forfeiture of such a recog must be done or intended unto the person as aforesaid or in terrorem populi 41. Therefore to enter into the lands Dalton 163. 164. where he ought to bring his Action or to disseise another of his lands or to enter into lands or tenements with force being without offer of violence to any mans person and without publique terrour Cromp. 136. or to doe a trespasse in another mans corne or grasse or to take away another mans Ward to take away another mans goods wrongfully so it be not from his person or to steale another mans horse or other goods feloniously being not from his person these will make no breach of this recog 4 H. 7. 8. 42. Note that if a man be bound in such a recog for himselfe and his servants if any one of them breake the peace the whole recog is forfeited Et sic in similibus 43. Note also that the sureties may plead that the party principall hath not broken the peace although upon issue the same shall be found against the said principall for they are estrangers thereto Fitz. averment 46. Concerning the writ of supplicavit CHAP. 61. 1. THe formes of this writ out of the Chancery are of diverse sorts as you may see Fitz. Na. Br. 80. d. 2. By which formes of the writ it appeareth that it may be directed to the Iustices of peace or to one of them or to the Sheriffe or to every of them to cause the party that is to be bound to come before him or them to finde surety of the peace and this writ may be that the principall shall be bound in such a summe and the sureties in such a summe certaine and also it may be in what certaine summes the demandant will or the summes may by the writ be referred to the Iustice of peace c. with this clause therein contained pro qua respondere volueris and the said writ is further that if the party shall refuse c. that they shall commit him to the gaole quousque c. and that when they have taken such surety they doe certifie the recog which they have so taken under their seales and returne the writ into the Court whence the same was awarded and that without delay 3. And for that this writ is of diverse formes the Iustice of peace must have a care that he doe execute the same in every behalfe as the same writ shall direct him 4. When the writ doth referre the summe wherein the principall and his sureties shall be bound to the Iustice c. then it resteth in their discretion but yet it is then safe for them to take good sureties and to bind them in good summes and the rather when that clause is in the writ pro qua respondere volueris 21. H. 7. 20. Br. peace 9. 5. When this writ is directed to the Sheriffe and to all the Iustices and is delivered to any one of them he onely to whom it is first delivered ought to execute the same writ in every behalfe scil he only shall make a warrant c. returneable before himselfe and shall take sureties and make returne thereof only without any other 6. The forme of a warrant for the peace upon a supplicavit you may see postea tit Warrants and Presidents 7. Also the same Iustice of peace after such surety taken may make the party a supersedeas to discharge him from any other arrest or to deliver him being in prison for the peace at any other mans suit as it seemeth Cromp. 237. b. 8. The forme of the supersedeas you may see after tit of Warrants and Presidents 9. The party who is attached upon this writ of supplicavit 21. H. 7. Br. peace 9. cannot goe to be bound before any other Iustice of peace but only before him from whom the warrant proceedeth upon this writ neither can another Iustice of peace by a supersedeas discharge such a warrant made by his fellow Iustice by force of this writ 10. The Iustice or Sheriffe to whom this writ shall be delivered may make a Deputy therein 9. Ed. 4. 35. f. Fx. Imp. 4. scil may make a warrant to the Constable or other person indifferent to apprehend the body or cause the party to come before him the said Iustice or Sheriffe to finde sureties c. and that if he shall refuse that then the Constable c. shall carry him
Cashes and cutting or clearing of Paces within the parishes where he dwelleth as farre forth and in such manner and forme as any person having a plow-land in any parish ought to be chargeable by the said Act as aforesaid and that every person or persons occupying or keeping in his or their hand or possession severall or divers plow-plow-lands as aforesaid in severall or divers parishes shall be charged to finde in each parish where the plow-plow-lands being in his occupying doe lye one Cart Waine Tumbrell Dungpot or Courtslad Carres or drags furnished and two men and other things as before for the amendment and repairing of the high-wayes making of Cashes and cleering of Paces within the severall parishes where the said plow-lands doe lye in such manner and forme as if hee or they were a parishioner dwelling within the parishes where the same severall plow-lands doe lye And for the better keeping of the high-wayes passable for his Majesties subjects It is likewise enacted that no person or persons having any ground by lease or otherwise adjoyning to any high-way or common fairing way leading to any market Towne shall cast or scoure any ditch and throw and lay the soyle thereof into the high way and suffer it to lye there by the space of sixe moneths to the annoyance of the said high way or common fairing way upon paine of forfeiture for every load of soyle so cast into the high way or common fairing way in ditching or scouring twelve pence and where any heretofore have beene so cast into the high-wayes or common fairing way that there is a banke betweene the said way and ditch that it shall be lawfull for the supervisors and workemen appointed for the amendment of the said high-wayes to make sluces or other devices by their discretions to convay the water out of the said way into the ditch any Law right interest custome or usage notwithstanding 20. And it is further enacted that all and every Iustices of Assise Iustices of Oyer and Terminer and Iustices of the peace in their Sessions and Stewards of Lectes and Law dayes in their Leetes and Law dayes shall enquire of and heare and determine all and every offence matter and cause that shall grow come or arise by reason of this Statute and to assesse such reasonable Fines and amerciaments for the same as by them shall be thought meete and that all and every penalty summe or summes of money forfeited or to be imposed for any cause within this Statute shall be levied within every parish by the Surveyors of the wayes within that parish for the time being by distresse and sale of distresses in manner and Forme as Fines and amerciaments in Leets have beene used and the money so levyed to be imployed upon the high-way or common fairing way where the offence was committed within one yeare and the said Surveyors shall at least once every yeare at the quarter Sessions to be holden for the said County make a true Accompt before the Iustices of peace there or any two of them whereof one to be of the Quorum and shall make payment of all such summâ— of mony to the Surveyors to be appointed for the yeare next following as he or they shall have collected upon the Estreares thereof to be made unto them upon paine to forfeit for every time hee shall not so doe forty shillings sterl and to be committed untill they make payment thereof and the Clerke of the Crowne or of the peace and the Steward of every Leete shall make estreate indented of all the Fines forfeitures and amerciaments upon the said defaults and shall deliver the one part thereof to the Surveyors of every parish where the said offence was committed yearely within Six weekes after the Feast of Saint Michael the Archangell and the said Surveyors upon their accompt shall have allowed for every pound they shall collect and pay Eight pence for his owne paines and 12. d. English for the Fees of the Clerke of the Crowne Clerke of the Peace or Steward of the Leete for the estrates indented of every severall parish that they shall deliver as is aforesaid 21. Note that the Kings high way or Regia vid loading either to the Market or from towne to towne the freehold and soile thereof and the interest of all the trees and other such profitâ— thereupon growing doe belong to the Lord of the soile or Lord of the Mannor 17. Ed. 3. fol. 9. Br. Chimin 1â— â—1 â—7 H. 6. fol. 9. Br. Leeteâ— And therefore such Lords are chargeable to cut downe the Trees and bushes growing in such high-wayes and yet by the opinion of Keble 8. H. 7. fol. 5. the freehold of the high-way and the Trees thereupon growing are belonging to him that hath the land next adjoyning Br. Nusans 18. but it seemeth this must be understood of common field wayes or other private wayes and not of the Kings high-way See â— Ed. 4. fol. 9. Britton fol. 111. 22. Note also that he which hath land adjoyning next to the K. high-way by the common Law before these statutes was and is chargeable and bound of common right to clense and scoure the ditches adjoyning to the said high-way 8. H. 7. fol. 1. A. Br. Nasanus 28. 23. And it is called the Kings high-way for that the King at all times hath therein passage for himselfe and all his people and may punish all Nufans therein though otherwise the interest thereof be in the Lord to take all the Trees and such other profits there growing and to bring his Action for digging therein or for any other like Trespasse there done 24. F.N.B. 113. A. And the King by the common Law may award his Commission for the amending of the high-wayes and Bridges throughout his Realme so as his people may have safe passage thereby Cloth CHAP. 7. EVery Iustice of peace may examine and punish certaine abuses concerning the making of cloth as appeareth by a Branch of a statute made in Anno 4. E. 4. ca. 1. which branch followeth in these words viz. 1. Therefore it is ordeined and established by the authority aforesaid that every man and woman being cloth-makers Cloth-makers from the Feast of Saint Peter shall pay to the Carders spinsters and all such other labourers of any member thereof lawfull money for all their lawfull wages Wages and payment of the same And also to deliver wolles to be wrought according to the faithfull delivery and due weight upon paine of forfaiture to the same labourer the treble of his said wages so not paid as often as the said cloth-maker doth refuse to pay the same in the said manner and forme to any such labourer put by him to the occupation in any of the said members of cloth-making And also to forfeit to the same labourer for every delivery of excessive and unlawfull weight to him delivered to be wrought 6. d. for every default and that every Carder Spinster Weaver
si tunc domisit vel alii de familia qui tunc interfuerunt poenam capitalem subibunt nisi forte per patriam fuerint liberati Stamf. 97. 179. 5. Sunt etiam quaedam presumptiones ita violentae ut probationem non admittunt in contrarium ut si quis cum cultello cruentato captus sit super mortuum vel fugiendo à mortuo vel mortem confitetur quibus casibus non admittitur mortem dedicere nec alia opus est probatione 10. And yet in cases of felony Co. 11. 30. 2. Vide. c. the confession of the offendor upon his examination before the Iustice of peace shall be no conviction of the offendor except he shall after confesse the same againe upon his triall or arraignement or be found guilty by verdict of 12. men c. 11. Also in cases of secret murders and in cases of poysoning witchcraft and the like secret offences where open and evident proofes are seldome to be had there it seemeth halfe proofes are to be allowed and are good causes of suspition 12. Note by the common Law 8 E. 4. 4. 5. H. 7. 4. Br. Faux imp 4. 16. that in an action of false imprisonment brought against the Constable or other person that shall aâ—rest another upon suspition of felony it is no plea for them to say that the plainetiffe was suspected of felony but he must alledge that there was such a felony committed and that the plainetiffe was suspected for the same for suspition onely without a felony committed is no cause to arrest another 13. Also the defendant must alledge some speciall matter in fact 17. E. 4. 5. 21. H. 7. 29. to prove that he who is arrested was suspected of felony as to say that the parry arrested is a man of evill fame c. otherwise every man may arrest one another without cause 14. Also by the opinions of Keble Vavisor and Townsend 7. E. 4. 10. Br. Faux imp 16. 25. aswell the Constable as others in his ayde may arrest one that is suspected of felony upon the suspition and complaint made to the Constable of the party robbed 2. H. 7. 15. 16. Br. Faux Impris 14. 2. H. 7. 15. 16. And although others there be of opinion that the suspition can extend to none other but only to him that hath the suspition yet I conceive the opinion of Keble Vavisor and Townsend to be good Law for if felons may not be arrested or stayed but only by those that shall suspect them and that others may not ayde and assist the party that shall suspect another to have robbed him many felons shall escape and goe unpunished to the exceeding great prejudice of the common wealth 15. But now by the statute of 10. Caroli in Ireland The constable c. in the former cases 10. Caroli c. 16. in Ireland may plead the generall issue not guilty and give the said speciall matters in Evidence 16. Also if the Constable or other person shall arrest another upon suspition of felony by vertue of a warrant from a Iust of P. such warrant shall excuse him it being given in Evidence Forceible Entrie and Forceible Detainer CHAP. 29. 1. Cromp. 67. THe common Law being the preserver of the common peace of the land hath alwayes abhorred force as the capitall enemy thereto Co. 3. 12. And yet before the Raigne of King Richard the second the common Law seemed to permit any man to have entred into lands and tenements with force and armes and also to have kept and detained them with force where his Entry was lawfull 2. And at this day if a man doth enter with force or multitude of people where his entrie is lawfull he is not punishable by action either at the common Law nor by action upon any statute for where the title of the plainetiffe is not good there he hath no cause of action 15 H. 7. 15. Br. Force 11. although the defendant doth enter with force but in such case he that entreth with force must be indicted upon the statute of 8. H. 6. or otherwise complaint may be made thereof to the Iustices of peace and aswell upon such indictment as upon such complaint the offendor shall be punished but the party ousted shall not be restored without indictment 5. R. 1. ca. 7. Regist 182. 3. And for the better restraining of such force and forceible Entries and to inflict condigne punishment upon the offendors therein it was first ordained by the statute 5. R. 2. that no man should enter into any lands or Tenements with force or multitude though he had good right or title to enter but only in peaceable and lawfull manner 4. But this statute provided no speedy remedy nor extended to holding with force 15. R. 2. ca. 2. nor gave any speciall power therein to the Iustices of peace and therefore by a statute made 15. R. 2. it was further provided that if any man should detaine or hold with force after such forceible Entrie made upon complaint thereof he should be imprisoned by the Iustices of peace 5. Yet neither of the former statutes extended to those that entred peaceably â— H. 6. ca. 9. and then held with force and therefore by the statute 8. H. 6. it was and is provided that no man shall enter with force nor detaine or hold with force generally 6. Now these two last statutes 15. R. 2. and 8. H. 6. doe enable any one Iustice of peace to give present remedy viz. to remove the force and commit the offendors in cases of forceible Entrie or holding against the aforesaid statutes 7. Also the statute of 8. H. 6. extendeth further reaching the offendors if they were removed before the comming of the Iustices giving the Enquiry and restitution and also punishing the Sheriffe that shall not obey the precepts of the Iust in this behalfe One Iustice 8. Every Iustice of peace upon complaint to him made or upon other notice to him given 15. R. 2. ca. 2. of any forceible Entrie into or holding or detainer of possession of any lands tenements or other possessions or of any benefices â— H. 6. ca. 9. P. 1. or offices of the church contrary to these statutes without any examining questioning or standing upon the right or title of either party ought in convenient time at the costs of the party grieved to doe execution of these statutes in manner and forme following 9. 15. R. 2. ca. 2. First he ought to goe to the place where such force shall be and he may take with him sufficient power of the County or Town by his discretion and the Sheriffe also if need be to aide him for the better execution of this businesse sc aswell for the arresting of such offendors as also for the removing of the force and for the convaying of them to the next gaole 10. He ought to arrest and remove all such
offendors as at his comming he shall see or finde touching the force Arrest And may take away their weapons harnesse and Armour and presently cause them to be preised and afterwards to be answered to the King as forfeited or the value thereof 11. If the doores be shut and they within the house shall deny the Iustice to enter he may breake open the house to remove the force 12. But if such offendors being in the house at the comming of the Iustice shall make no resistance nor make shew of any force then the Iustice cannot arrest or remove them except upon the enquiry a force be found See Cromp. 37. 13. Also if the house or land which is holden with force shall extend into two Counties Cromp. 71. and the offendors remove their force into that part of the house or land which is in the other County when the Iustices doe come they cannot then remove the force 14. And if the Iustice at his comming shall see or finde a force and shall remove the offendors yet he may not upon his owne view restore the party ousted to his possession againe without enquiry first made of the force by a Iury. 15. Record 14. H. 7. 8. Co. 8. 121. Also the Iustice ought to make a Record of such force by him viewed which Record shall be a sufficient conviction of the offendors and the parties shall not be allowed to travers it 16. 163. 375. And this record being made out of the Sessions by a particular Iustice the said Iustice may keepe it by him or he may make it indented and certifie the one part into the Kings Bench or leave it with the Clerke of the peace and the other part he may keepe himselfe 17. The forme of the record you shall finde hereafter in the Title of warrants and presidents 18. Imprison 21. H. 6. 5. Br. Peace 4. Also he ought to commit immediately to the next gaole all such persons as he shall finde and see continuing the force at his comming to the place there to remaine convict by his owne view testimony and record untill they have paid a Fine to the King Co. 8. 12â— P. 2. For this sight and view of the force by the Iustice being a Iudge of Record maketh his record thereof in the Iudgement of Law as strong and effectuall as if the offendors had confessed the force before him and touching the restraining of a traverse more effectuall then if the force had beene found by a Iury upon the Evidence of others 19. Aâ—d yet the words of the statute seeme more large sc And if he doe finde any that made any such forceible Entrie or that hold the place with force Cromp. 1â—5 c. he shall commit the offendors to the gaole c. But such force must be in the presence or view of the Iustice of peace or else he can neither record it nor yet commit the offendors 13. H. 7. Crooke 41. 20. The forme of the Mittimus you may see afterwards in the Title of warrants and presidents 21. Also the same Iustice of peace or some of them that shall see the force as having best knowledge of the matter and of the quality of the offence Fine Co. 8. 41. a. 557. and having the custodie of this record are the proper Iudges over this offence And therefore may assesse the fine upon every such offendor and commit him untill he make payment thereof But the fine must be imposed upon every offendor severally and not upon them jointly Co. 11. 43. 3. And the Iustice ought to estreate the same Fine and committall and to send the estreate immediately into the Eschequer that there the Sheriffe may be charged with the said Fine upon his account 22. Also upon payment of the said Fine the said Iustice may deliver the offendors out of prison againe by some opinions Br. Imp. 100. but the safest way for the Iustice of peace is to estreate the Fine and committall into the Eschequer and leave the further proceeding therein to that Court. 23. Or the Iustice of peace by some opinions may record such force and commit the offendors and after certifie the record to the Iustices of Assise Cromp. 161. and gaole delivery as it was done at Stafford Assises Anno 26. Eliz. by the report of Master Crompton or else to certifie it to the generall Sessions of the peace as it seemeth to Master Crompton and there the offendors may be fined For saith he the statute doth not say that the Fine shall be assessed by them that record the force more than by other Iustices 24. Or rather the Iustice of peace may certifie or deliver the record by him made and referre the fine and further proceedings therein to the K. Bench in regard of their supreame authority in such cases And this Master Lambert thinketh to be the safest course Enquirie 25. Also the Iustice of peace notwithstanding his owne view of the force may and ought in some good towne and place neere where the force was to enquire by a sufficient Iury of the same County to be returned by the Sheriffe aswell of those which made such forceible Entrie as of those which made such forceible deteyner 26. And here note that any one Iustice of peace alone out of the Sessions may make an Enquiry being so appointed by the statute whereas otherwise there must be two Iustices at the least to make an inquiry or to hold a Sessions and one of them of the Quorum 27. And this enquiry ought to be made whether the offendors be present or gone at the comming of the Iustice of peace yea this enquiry the Iustice must make though he goe not to see the place where the force is for without this enquiry there can be no restitution 28. The forme of a precept to the Sheriffe to returne a Iury and the forme of the Enquiry Presentment or verdict you shall finde in the Title of warrants and presidents 29. And if upon such Enquiry Restitution such forceible Entrie or forceible holding or deteiner shall be found by the Oathes of the Enquirors then the said Iustice of peace shall reseise the lands and tenements so entred upon or holden and thereof put the party in possession againe which in such sort was put or holden out 30. But aswell the putting out as also the holding out must of necessity be found and that by expresse words in the Indictment 31. And this restitution the Iustice of peace may make himselfe Or he may make his warrant to the Sheriffe to doe it Or else he may certifie such presentment or indictment taken before him into the Kings Bench and so leave the restitution to be awarded out of that Court. 32. But the Iustices of Assise and gaole delivery nor Iustices of peace at their generall Sessions cannot as it seemeth make or award restitution except the Indictment were found before them but the
or in spight of the other or such like or other threatning words this maketh it a forceible Entrie 11. So it is if diverse persons shall come with weapons not usually borne by them to a house that is open Cromp. 69. or to ground and shall there enter peaceably without any disturbance yet this is a forceible Entry for it shall bee intended that they would have used force if they had been resisted 10. H. 7. 12. Br. force 30. 12. So it is when the Master entreth into an house or land being attended with a greater number of servants than usually doe wait on him 13. Note that though a man doe actually use no force in his Entry yet if he doe come so appointed either with weapon or company that other men may be reasonably afraid that he mindeth to make his way by force Dalton ibid. rather then he will faile of his purpose it seemeth to be a forceible Entrie 14. Also it seemeth that every Entrie into another mans house or ground which is made with force sc manuforti A trespasse Dalton ibid. or cum multitud either with apparant violence offered to the person of any other or furnished with weapons or company which may cause feare though it be but to cut or to take away another mans Corne grasse or other goods or to fell or crop wood or to doe any other like trespasse though he doe not put the partie out of his possession yet it seemeth to be a Forceible Entrie punishable by these statutes 15. But if the Entrie were peaceable and after such Entry made they cut or take away any other mans Corne Dalton ibid. grasse wood or other goods without apparant violence or force though such Acts are accounted a Disseisin with force yet they seeme not to be punishable by these statutes sc the Iustices of peace are not to remove imprison or fine such offendors Cromp. 70. 11. H. 4. 16. 16. Also if one or more shall enter into another mans house or land peaceably and after his or their Entry shall by force or violence cut or take away any Corne Grasse or wood c. or shall forcibly and wrongfully carry away any other goods there being this seemeth to be a forceible Entry punishable by these statutes 20. H. 6. 11. 17. So is it if a man shall distraine with force for a Rent be it due or not due this doth countervaile an Entry with force Br. Forc 1. Dalton ibid. 18. And in these cases of Trespasse onely the Iustice of peace upon complaint to him made may as it seemeth remove such force and upon view thereof may imprison and fine such offendors 19. If a Disseisor hath entred peaceably By words Dalton pa. 179. and being entred shall presently threaten to kill the Disseisee if he reenter this seemeth a Forceible Entry in the Disseisor 20. But note 2. H 7. 16. Br. force 25. that a Forceible Entry cannot be without an actuall Entry for the words of the statutes be whosoever doth enter c. 21. Note also if one that hath right to enter upon land Cromp. 70. shall goe with divers in his company and with weapons over the land whereto he hath right to the Church Market or some other place this is no Entry with force except hee shall expresse his intent that hee doth enter there claiming the land 22. Note also that if a man shall enter with force into house or land although he obtaineth not 5. R. 2. ca. â— 15. R. 2. ca. 2. 8. H. 6. ca. 9. nor getteth the actuall possession thereby yet shall he be imprisoned and fined for the onely entring with force as it seemeth see the statutes in the margent but Restitution is not to be made but onely where there is a putting out and a holding out of another out of his possession 23. If by faire meanes Lawfull Dalton pa. 175. a man whose Entry is lawfull shall perswade or intice them which are within the house to come out and then the doore being open or shut by the latch onely he shall enter peaceably without multitude offensive weapons or other violence this Entry seemeth to be justifiable 24. So is it if he shall enter peaceably Dalton ibid. and then by gentle perswasions can send them out that are within the house and after shut the doore and keepeth them out this seemeth justifiable so that afterwards he holdeth it not forceibly nor useth violence or threatning speeches 25. So it is if I shall take a man being out of his house and then I doe put or send into the house my servant or some other Dalton ibid. in peaceable manner and doe hold away the other by imprisonment of his person this is no forceible Entry nor deteyner within these statutes but a false imprisonment punishable by action only 26. So it is if he whose Entry is lawfull Dalton ibid. shall enter peaceably into his house the doores being open or shut by the latch onely and being so entred shall continue and abide there peaceably this is justifiable And if they which were before in possession shall put or thrust him out forceibly this is a forceible deteyner of their parts 27. Forceible Deteiner Forceible deteiner Dalton ibid. must be understood of a forceible deteining of the possession of lands or tenements and not of the person of a man as before 28. Note also though the Entrie were at the first peaceable 8. H. 6. ca. 9. P. force 4. Dalton pa. 180. and lawfull yet if there be after a holding by force it is punishable by the statute except where there was at the first a lawfull and peaceable entry and thereupon a lawfull possession peaceably continued by the space of three yeares together without interruption for there a man may hold and keepe such possession with force against all others saving against the Kings officers 29. If the Iustice of peace shall come to the place or house that is supposed to be holden with force P.R. 41. Cromp. 70. and there shall finde the doores or gates shut and he or they within shall deny him to enter or will not suffer him to enter this is a forceible holding or deteiner though there be no weapons shewed or used and though there bee but one person in the house or upon the ground 30. So it is if when the Iustice of Peace entreth the house or ground Ibid. he shall finde there any persons in harnesse or otherwise armed or having harnesse armour or other weapons not usually borne by them lying ready this is a forceible Deteiner Ibid. 31. So it is if the Iustice of Peace shall find in the house any great number of people other than the ordinary family or companie P.R. 41. 32. Also if a man shall enter peaceably into a house and after shall bring into the same more weapons than he and his ordinary family doe
restitution if hee shall continue a peaceable posses againe for three yeares together then it seemeth he may justifie the Deteiner of the posses thereof by force by vertue of the Proviso in the stat of 8. H. 6. 5. If a Disseisor hath continued his possession peaceably three yeares and after the disseisee doth reenter 23. H. 8. Br. force 22. or doth make his claime so neere as he dareth and then the disseisor reentreth againe or continueth his possession after such claime here the disseisor cannot justifie to hold the same with force Lit. 429. for by the reentry or claime of the disseisee the first disseisin and possession of the disseisor was determined and the disseisor is in of a new disseisin 6. Also if he that hath been a lawfull possessor of lands by the space of Twenty yeares together be once clearely and wholly removed from the possession of the same land hee cannot come with force or multitude to put himselfe in possession thereof againe and to detayne the same with force because his possession was once interrupted and if he be indicted upon the statute of 8. H. 6. for such Forceible Entry he shall not be relieved touching the restitution by the stat of 10. Carol. for that hee had not the occupation of the said lands nor had been in quiet possession thereof by the space of three yeares together next before the day of such indictment found How many severall remedies the party hath which forceibly is either put out or kept out of the possession of his houses or lands CHAP. 33. 1. FIrst the party so grieved having an estate for life Action upon the statute of 8. H. 6. 1. R. 2. ca. 9. 8. H. 6. ca. 9. F. N. B. 348. c. c. 249. 2. co 10. 115. in Taile or Fee may have his Assise or action of trespasse of Forceible Entry upon the statute of 8. H. 6. against such disseisor and therein if the defendant be attainted of force he shall fyne to the King and also answere to the plaintiffe his treble damages and treble Costs of suit and also the plaintiffe shall thereupon have a writ of restitution to restore him to his former estate 2. But this action being the suit of the party and onely for the right 9 H. 6. 16. this remedy by action is only where the Entry of the defendant was not lawfull Fitz. 248. h. for if a man entreth with force where his Entry is lawfull as if the disseisee shall enter upon the disseisor with force he shall not bee punished by action But yet he may be indicted upon the statute Br. force 29. and upon such indictment found the party put out shall be restored for the indictment is for the force and for the King and here the offendor shall make fyne to the King although his right be never so good Br. Force 11. 3. Also the party so grieved if hee will loose the benefit of his treble damages and costs Writ upon the statute of Northampton he may be aided and have the assistance of the Iustices of peace and that after diverse sorts first he may purchase a writ out of the Chancery directed to the Sheriffe only or the Sheriffe and Iustices of peace and to every of them for to remove the force and this is upon the statute of Northhampton 2. E. 3. cap. 3. the forme of which writ you may see F. N. B. 249. f. Cromp 74. 162. 4. But upon this writ the Iustice of peace is to proceed only as a minister and is to certifie his doings herein and that Iustice of peace to whom the writ shall be delivered ought for to execute it scil he may remove the force but here he may not put the party in possession againe who was put out Indictment in Sessions 5. Also the party grieved may at the generall Sessions of the peace within the same County preferre his bill of indictment upon the statute of 8. H. 6. for such forceible entry or deteiner which being found there Dyer 187. Cromp. 165. the complaynant shall be restored to his possession by a writ of restitution granted out of the said Court to the Sheriffe 6. Also the party so grieved for a more speedy remedy may complaine to any one or more Iustices of peace of the same County of the said force By the In out of Sessions and thereupon the said Iustice of peace may ex officio Dalton 191. 192. and without any writ either doe execution of the statute of Northhampton as aforesaid Or else the said Iustice of peace upon such complaint may goe to the place where such force is to see it and may remove the force and arrest and commit the offendors which he shall find committing the force and shall also keep a speciall Sessions to inquire of the said force and if upon such inquiry such force shall be found then the said Iustice shall restore the party grieved to his possession againe and here no other Iustice of peace can grant a Supersedeas to stay the same restitution Dalton 192. 7. Also the party grieved may remove such indictment found either at such generall or speciall Sessions by a Certiorari into the Kings Bench and the Iudges of that Court may award a writ of restitution to the Sheriffe of the County to restore possession to the party Eâ—quirie 8. Now when the Iustice of peace shall make such inquiry he shall direct his precept or warrant to the Sheriffe commanding him to cause to come before the said Iustice of peace Dalton ibid. at some good Towne neere to the place 24. sufficient and indifferent persons dwelling neere to the said lands or tenements whereof every one shall have in lands or tenements 40 s by the yeare at the least to inquire upon their oathes of such force 9. Upon default of apparance of those Iurors the Iust of peace may award an alias and after that Pluries in finite till they come 8. H. 6. c. 9. but so that at the day of the second precept or writ the Sheriffe must returne 40 s in issues upon every one of them and at the third writ 5. li. and at every day after the double 10. And although any of such Iurors shall not have 40 s land per annum yet their presentment of such force is good for the King so as the offendors shall be fined to the King But the party shall have no restitution upon such a presentment if it be pleaded at or before the time of the awarding of the restitution for the statute of 8. H. 6. ca. 9. requireth that such Iuror shall have 40 s freehold per annum at the least 11. If the Sheriffe shall returne smaller issues upon the Enquirors then the statute doth appoint yet the party indicted shall not impeach the enquiry therefore neither is it cause to impeach the enquiry though the Iustice of
peace doe not goe to see the place where the force is 12. And it is convenient upon such enquiry that the Evidence be given openly to the Iury to the intent it may appeare to the Iustices of peace or Court whether there shall be reasonable cause to stay restitution or no after the indictment found See Dyer 122. Of restitution to be made to the party put out CHAP. 34. 1. I Will here shortly recite the words of the statute Restitution which for this businesse of restitution will give the better light which are as followeth videlicet 8. H 6. ca. 9. And if upon such enquiry it be found before the said Iustices that any have done contrary to this statute viz. have entred or held with force the said Iustice of peace c. shall reseise the said lands or tenements so entred upon or holden and put the party so put out in full possession of the same lands and tenements so entred or holden as before 2. Here we see that after such forceible Entrie P.R. 35. or holding so found by enquiry the said Iustice of peace c. shall remove the force sc all such offendors as shall be found in the house or upon the lands that either entred or held with force and upon the prayer of the party so put out the said Iustice of peace shall restore him to his possession againe 3. And herein the Iustice of peace needeth not to stay or stand upon the right and title of either of the parties as is said before 4. But no restitution shall be made but where the forceible entry or detainer is first found by Inquisition Br. force 27. 5. Concerning this Inquisition or Indictment the Iustices of peace shall doe well to peruse and regard the same Cromp. 166. to see if it be sufficient Indictment the forme for the Iustice of peace ought not to award restitution where the indictment shall appeare to them to be any way insufficient in the Law either in matter or forme Dalton 193. 6. First therefore to have restitution the putting out by expresse words must be in the indictment and found by the Inquisition for another man may enter upon me and yet not put me out and then there needs no restitution to be made by the Iustices 7. And this putting out is to be understood only of the house or land Ibid. and not of a rent common advowson and such like into which an actuall Entry cannot be made and therefore none shall have restitution but such only as are put out of the house or land as is formerly ca. 29. herein declared Ibid. 8. Also the indictment ought to expresse the quality of the thing entred upon c. sc whether it be a messuage cottage meadow pasture wood or land errable for if the indictment be quod manuforti intraverunt in tenement c. it is void for the incertainty because the word tenementum may extend to either of them 9. Also the indictment must have these words sc adhuc extra tenent 14. H. 6 16. Br. force 13. otherwise the party shall have no restitution and yet these words be not in the statute but without these words in the Indictment it may be supposed and thought that he which put me out hath left the possession againe or that I have gotten it againe and then the restitution is needlesse Dalton 193. 10. So as in every such indictment these words are materiall sc expulerunt adhuc extra tenent And for lack of either of these words no restitution shall be made or awarded 11. Also one of these two words Manuforti or cum multitudine seeme to be materiall in the indictment Dalton 194. unlesse they be implyed by reciting the statute of 8. H. 6. and concluding contra formam statut predict or by some other words in the Indictment See the presidents herein in the title of warrants and presidents Cromp. 162. 12. If a man shall be restored upon an insufficient indictment taken before the Iustice of peace and this be removed into the Kings Bench the Court there will cause the party to be restored that before was put out by the Iustice of peace by a writ of restitution Cromp. 165. 166. b. 13. Also if error or insufficiency be in the indictment taken before Iustices of peace yet restitution is awarded by them any two of those Iustices of peace which were present at the taking of the said indictment upon the prayer of the party may at another Sessions grant and award a Supersedeas to the Sheriffe to stay the same restitution Dyer 187. if the Sheriffe hath not made restitution before the Supersedeas come to his hands but no other Iustice of peace besides those which were present at the taking and finding of the said indictment can grant a Supersedeas if the indictment were found at a speciall Sessions 14. A man is indicted that he entred with force and held with force and upon the traverse it is found that he entred with force Cromp. 165. but not that he held with force yet this indictment seemeth good enough and the party shall be restored 15. So if two be indicted of a forceible Entrie or deteiner Severall indictments and upon the traverse it is found that the one entred with force and the other held or detained with force yet the party shall be restored Ibid. 16. If it be found by one Enquest that A. put me out by force Dalton 194. Cromp. 166. Br. force 6. and by another Enquest that I did put out A. by force either of us may pray to have restitution against the other but he that is first restored is in the worst case for the other may have restitution afterwards and then he that had restitution first is without remedy by the hands of the Iustice of peace saving that he may reenter if he can peaceably or have his action 17. If it be found by one Enquest that A. did put mee out by force and by another Enquest taken at the same Sessions that B. did put me out by force I may chuse upon whether of these indictments I will be restored Cromp. 166. and if I have restitution against A. and this be returned I cannot have restitution upon the other Dalton 194. But if upon the writ of restitution it be not returned that I have restitution then I may afterwards have restitutiō against B. upon the other Indictment if B. hath reentred upon the first restitution made to me 18. Dalton 194. 195. A. is disseised or put out with force by B. and after B. is put out with force by C. and all this is found by one and the same Inquisition here B. may have restitution against C. for B. hath more right to the possession than C. and then may A. have restitution against B. but upon this Inquisition if A. have restitution
or for vexation only Ibid. without any just cause of feare it seemeth he may safely deny it as in common experience we finde it that where A. shall upon just cause come and crave the peace against B. and hath it granted to him when B. shall come before the Iustice B. likewise will crave the peace against A. and will perhaps surmise some cause but yet will neverthelesse be content to surcease his suit and demand against A. so as A. will relinquish to have the peace against him here the Iustice of peace shall doe well as I thinke not to be too forward in granting the peace thus required by B. but to perswade with him and to shew him the danger of his oath which he is to take but yet if B. will not be perswaded but will take his oath that he is in feare where indeed he neither doth feare nor hath cause to feare the Iustice may if he please upon such oath to grant the peace and this oath shall discharge the Iustice and the fault shall remaine upon the party but in such case I thinke it better discretion in the Iustice to forbeare taking of such oath and the security for the peace then to grant it 39. The Law hath conceived such an opinion of the peaceable disposition of noble men Noble men that it hath beene thought enough to take one of their promisses upon his honour that he would not breake the peace against a man Br. contempts 6. 24. Ed. 3. 3. and 17. Ed. 4. 4. 40. And therefore if a man shall have cause to have the surety of the peace against a Lord of the Parliament or such great and noble personage he shall not have a warrant from the Iustices of peace to that purpose nor yet have a supplicavit out of the Chancery directed to the Iustices of peace therefore but if there be cause he may have a Sub poena out of the Chancery of common right as it seemeth and there such Lord or noble man shall be bound to the peace and yet if such Lord will not appeare upon the Sub poena served Fitz. subp 20. it seemeth an attachment will lye against him upon such his default Master Cromp. fo 134. b. saith that it was held in the case of the Lord Cromwell in the Chancery about 18. Eliz. that an attachment lieth not against a Lord where he maketh default upon a Sub poena against him out of the Chancery Dyer 315. seemeth to accord but I conceive that this opinion is no Law but that for a personall contempt in a noble man an attachment lyeth or he may be fined by the Court for his contempt Co. 6. 53. 54. 11. H. 4. 15. Br. Rep. 19. 41. But though it be true that the persons of Barons who are peeres of the Parliament shall not be arrested for or in cases of debt or trespasse by their bodies first in respect of their dignity secondly that the Law presumeth that they have sufficient lands and tenements wherein they may be distrained yet in cases of contempt it seemeth they may be arrested by capias or attachment c. Fitz. subp 20. 42. Or else it seemeth that the party may crave the peace in the Chancery against such Lord or peere sc to have a supplicavit directed to the Sheriffe and that the Sheriffe may and ought to execute the same and that if the Sheriffe shall not doe his office therein an alias plur attachment lieth against him F.N.B. 79. g. and if the Sheriffe shall returne that such Lord is puissant that he cannot arrest him upon such return the Sheriffe shall be grievously amerced for he might have posse comitatus sc he might have levyed 300. men by his discretion if there had beene need Crom p. 134. to have aided him in such case and if such Lord or peere who is by the Sheriffe so arrested shall refuse the arrest and shall make a rescous whereupon the Sheriffe shall returne a rescous hereupon an attachment shall be granted out against such Lord to arrest and take his body for such his contempt Co. 6. 52. 53. 43. The same Law and remedy seemeth to be where a man hath cause to have the surety of the peace against a Dutchesse Countesse or Baronesse for they are Peeres of the Realme and shall be tryed by their peeres although in respect of their sexe they cannot sit in parliament and they are in the same degree as concerning their nobility and the priviledges incident to their dignities with Dukes Earles and Barons but here note this diversity sc if such a woman being a Countesse or Baronesse c. by marriage only shall marry againe under the degree of nobility she hath thereby lost her name of dignity together with the priviledges of her said nobility also as it seemeth for in such a case si mulier nobilis nupserit ignobili deserit esse nobilis Co. ibid. and that which was gotten by marriage may also be lost by marriage for eodem modo quo quid constituitur dissolvitur but if shee be noble by birth or discent whomsoever shee shall marry yet she remaineth noble for birthright est character indelebilis 44. And yet by the curtesie of England if women get to any degree of estate they never lose it by marriage but doe still take place according to the estate of their first husband but this matter of curtesie hath no place in legall proceedings Dalton 146. 45. Suretie of the peace may be granted by the Iustice of peace against a Knight and against all other lay persons being under the degree of a Baron or peere of the Realme and they shall be bound with sureties 26. H. 6. 23. Br. Maigne 14. 15. 46. Ecclesiasticall persons if they be not attending upon divine service may be arrested for the peace and they shall be bound with sureties but whilst they are doing any divine service in the Church Churchyard or other place dedicated to God they may not be arrested 5. Ed. 3. 5. P. Arrests 1. See the stat 1. R. 2. cap. 15. 47. Surety of the peace may be granted against the Sheriffe Dalton 146. Coroner Escheator and other such officers of Iustice but Master Marrow adviseth that such persons be not bound versus cunctum populum but only against such person as shall demand it least otherwise it should argue them unworthy of their offices 48. One Iustice of peace may grant this surety to any man Dalton 146. Lambert f. 80. against one of his fellow Iustices but great discretion is herein to be used otherwise he shall bring the office into contempt and himselfe to reproofe by it saith Master Lambert but although one Iustice of peace may take a recognisance of the peace of one of his fellow Iustices yet if his fellow Iustice shall refuse to finde such security I cannot conceive that the Iustice of peace may commit his fellow Iustice for