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
within the age of Forty yeares not living in Merchandise nor exercising any Craft nor having of his owne whereof he may live Requâ—â—ed to serve wages nor any lands about tillage whereof hee may imploy himselfe and not serving any others if he inconvenient service his estate considered be required to serve 33. H. 1. ca. 9. shall be bounden to serve him which so shall require him the wages are to be rated by the Iustices of peace according to a statute made in Ireland in 33. H. 8. ca. 9. Provided alwaies that the Lords be preferred before other in their bondmen or their land tenants so in their services to be retained So that neverthelesse the said Lords shall retaine no more then be necessarie for them and if any such man or woman being so required to serve will not the same doe and that proved by two true men before the Sheriffe or Bailiffes of our Soveraigne Lord the King or the Constable of the Towne where the same shall happen to be done he shall anone be taken by them or any of them Imprison and committed to the next goale there to remaine under strait keeping till he finde suretie Surety to serve in the forme aforesaid 23. E. 3. de servient cap. 1. 2. If any reaper mower or other workman Depart without license or servant of what estate or condition that he be retained in any mans service do depart from the said service without reasonable cause or licence before the Terme agreed he shall have paine of imprisonment and that none under the same paine presume to receive or to retaine any such in his service Anno 23. E. 3. cap. 2. Receive to service 3. That no man pay or promise to pay to any servant any more wages Wages liveries meede or salarie then was wont nor that any in other manner shall demand or receive the same upon paine Paine of doubling of that that so shall be paid promised required or received to him which thereof shall feele himselfe grieved 23. Ed. 3. ca. 3. pursuing for the same Ann. 23. Ed. 3. ca. 3. Cap. 2. Stat. de servient 4. If the Lords Lords of the Townes or Mannors presume in any point to come against this present ordinance either by them or by their servants then pursuit shall be made against them in the counties Wapentakes Tithings or such other Courts Damages for the treble paine payed or promised by them or their servants in the forme aforesaid and if any hath covenanted with any to serve for more wages Covenant he shall not be bound by reason of the same covenant to pay more then at another time was wont to be paid to such person nor upon the said paine shall presume any more to pay An. 23. Ed. 3. ca. 4. But now the wages must be such as shall be rated by the Iustices of peace according to the said statute of 33. H. 8. ca. 9. 33. H. 8. ca. 9. in Ireland 5. That Sadlers Skinners Whitetawers Cordwaynees Taylors Artificers Smiths Carpenters Masons Tylers Shipwrights Carters and all other Artificers and workemen shall not take for their labour and workemanship Workemanship above the same that was wont to be such paid to such persons and if any man take more he shall be committed to the next gaole in manner as is aforesaid Ann. 23. Ed. 3. cap. 5. 33. H. 8. ca. 9. in Ireland But this statute also as to the wages only is altered by the said statute of 33. H. 8. ca. 9. 6. Anno 23. Ed. 3. de servi ca. 7. It was enacted that all the forfeitures given by this statute de servientibus against Labourers should be levyed of every of them 23. Ed. 3. ca. 7. and should be imployed to the payment of the tenth and fifteene then granted and after to the Kings use to be levied by certaine appointed in the statute neverthelesse he that will may sue for these forfeitures to have them to his owne use Threshers 7. That none take for the threshing of a quarter of wheate or rye over two pence halfe penny and the quarter of Barley Beanes Pease and Oates one peny halfe peny if so much were wont to be given and in the Countrey where it is used to reape by certaine sheaves and to thresh by certaine bushels they shall take no more nor in other manner then was wont and that the same servant be sworne two times in the yeare before Lords Oath Stewards Bailiffes Constables Stewards Bailiffes and Constables of every Towne to hold and doe these ordinances and that none of them goe out of the Towne where he dwelleth in the winter to serve in the Summer if he may have service in the same Towne taking as before is said Refuse Stocks Imprison Stocks and that those which refuse to make such Oath or to performe that that they be sworne to or have taken upon them shall be put in the Stocks by the said Lords Stewards Bailiffes and Constables of the Townes by three dayes or more or sent to the next gaole thereto remaine till they will justifie themselves and that Stocks be made in every Towne by such occasion Anno 25. Ed. 3. de servien cap. 2. But the wages in this also are to be regulated by the said statute of 33. H. 8. Artificers 8. That Carpenters Masons and Tylers and other workemen of houses 33. H. 8. ca. 9. in Ireland shall not take by the day for their worke but in manner as they were wont Anno 25. E. 3. cap. 3. but wages in this case also is to be regulated by the said statute of 33. H. 8. ca. 9. Plaisterers c. Wages 9. Plaisterers and other workers of Mudwals and their knaves by the same manner without meate or drinke S. from Easter to Saint Michael and from that time lesse 33. H. 8. ca. 9. in Ireland according to the rate and discretion of the Iustices which shall be thereto assigned Ann. 25. E. 3. cap. 3. 33. H. 8. ca. 9. in Ireland 10. Goldsmiths Sadlers Horsesmiths Spurriers Tanners Curriers Artificers Tawers of Leather Taylors and all other workemen Artificers and labourers and all other servants here not specifyed shall be sworne before the Iustices Oath to doe and use their crafts and offices in the manner as they were wont to doe without refusing the same because of this ordinance And if any of the said servants Labourers workemen or Artificers after such oath made come against this ordinance he shall be punished by Fine and ransome Iustice and imprisonment after the discretion of the Iustices Imprison Anno 25. Ed. 3. cap. 4. the wages also in this case are to be regulated by the said statute of 33. H. 8. ca. 9. by the Iustices of peace in the Quarter Sessions next after Easter and Michaelmas halfe yearely Stewards Constables Oath Inquitie
39 40 41. Ca. 31. Who may commit a forcible Entrie c. 1. Of the number of the persons S. 1 7. 2. Of the qualitie of the persons S. 2 3 4. 3. Of the commandement before or consent after the force Sect. 5 6. 4. Of the persons put out by force S. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22. 5. Of the weapons offensive S. 23 24 25. 6. Of force justifiable or not justifiable S. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Ca. 32. Where a forceible detainer of possession is lawfull Where a continued possession of 3. yeares may bee maintained with force S. 1 2 3 4 c. to the end of the Chapter Ca. 33. How many severall remedies the party hath which is either forcibly put or thrust out of posses 1. By an action upon the statute of 8. H. 6. S. 1 2. 2. By a writ upon the statute of Northhampton S. 3 4. 3. By endictment upon the statute of 8. H. 6. in the Sessions of the peace S. 5. 4. By complaint to one or more Iustices of peace out of Sessions Sect. 6. 5. By removing the Endictment into the Kings Bench S. 7. 6. How the Iustice of peace is to proceed to the enquiry S. 8 9 10 11 12. Ca. 34. Of restitution to be made to the party put out 1. In what cases the party put out shall be restored and by whom S. 1 2 3 4 14 15 16 17 18. 2. The Endictment must be sufficient matter and forme S. 5 6 8 9 10 11 12 13. 3. Of what things restitution may be made S. 8. Ca. 35. Who shall award and make this restitution 1. The Iustice of peace before whom the Inquisition was found shall award or make the restitution and none other S. 1 2 3. 2. The Iustices of the Kings Bench upon a Certiorari may award it but not doe it in person S. 4 5. 3. The Sheriffe shall be amerced if he returne that he could not make restitution by reason of resistance S. 6 7. Ca. 36. To whom this restitution is to be made 1. To the party that was put out and to none other S. 1 2 3 4 5 6. 2. Where the disseisor which is put out with force shall not be restored and if he that entred with force shall be fyned and imprisoned S. 7 8 9. 3. Where diverse claime the possession and both are upon the land who shall be adjudged session S. 10 11. 4. Where one Ioyntenant or Tenant in Common putteth out the other by force he that is put out cannot be restored by a Iustice of peace S. 12. 5. Two Iointenants put out S. 13. 6. Coppiholder Lessee for yeares Tenant at will Tenant by Elegit c. S. 14 15. Ca. 37. Causes for staying the Iustices of P. from granting Restit 1. The title found or proved before the Iustice of peace S. 1. 2. Three yeares possession S. 2 5. 3. A Certiorari S. 2 6 7 8 9. 4. The insufficiency of the Indictment S. 3. 5. The tender of a Traverse S. 10 11 12 13. 11. Games unlawfull ca. 38. 1. What punishment a Iustice of peace may inflict upon common gamesters such as keepe common gaming houses S. 1. 2. What games are unlawfull and what not S. 2. 12. Hâ—y cry ca. 39. 1. In what case the Iustice may cause it to be levyed Sect. 1. 2. How it ought to be made S. 2 3. 13. Hunting hawking and hawkes ca. 40. 1. What a Iustice of peace ought to doe upon Information unlawfull hunting S. 1 2 3. 2. Where and in what cases such hunting will be felony and where a Riot S. 2 4. 3. No man can make a parke or warren without the Kings lycense or grant S. 5. 4. The imbezelling of a hawke that is lost is felony S. 6. 14. Inrolements ca. 41. 1. What deeds may bee inrolled before a Iustice of peace and Clerke of the peace and within what time S. 1 2 3 4. 2. How many dayes shall be accompted for a moneth S. 4 5 6. 15. Labourers Artificers servants ca. 42. 1. Iustices of peace may commit such as refuse to labour Sect. 23. 2. What persons may be compelled to labour and how they shall be punished for their refusall Sect. 1 23 35 36 37 38 39 40 41. 3. The punishment of servants departing within the time of their service S. 2. 4 The retaining of one that is another mans servant S. 2. 5. What wages servants Labourers or Artificers ought to take S. 3 4 5 6 7 8 9 20 21 24 25 26. 6. The punishment of such as refuse to performe the ordinances of the statutes of Labourers c. S. 7 10 11 14. 7. That Bailiffes and Constables be sworne to enquire of and present all such as shall transgresse the ordinances concerning Labourers c. S. 11. 8. Nothing to be taken by Gaolers or any others of Labourers c. for fees S. 12 19. 9. Encouraging of Labourers c. against the ordinances concerning them and the punishment of servants departing into other Counties contrary to those ordinances S. 13 15 16. 10. Iustices of peace to heare and determine the points of the statutes concerning Labourers and Artificers Sect. 17 18 22 23. 11. That servants intending to depart from their masters at the end of the Terme shall give warning S. 23. 12. What the Common Law was concerning Labourers c. S. 28 29 30 31 32 33 34. 13. Who are compellable to labour by the statute of 23. E. 3. S. 35 36 37 38 39 40 41 42 43 44 45. 14. What is a good retainer by that statute S. 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64. 15. What be good causes for a servant to depart S. 65 66 67 68 69. 16. How and in what manner the master may discharge his servant S. 70 71 72 73. 17. Who may lawfully take a servant out of his masters service S. 74 75 76 77 78 79 80. 18. In what cases a man may receive another mans servant S. 81 82. 19. Who shall in law be adjudged another mans servant S. 83 84 85. 16. Misprisions ca. 43. 1. The severall sorts of Misprision and the severall punishnishments S. 1 5. 2. What offences are misprisions of Treason or felony S. 2 3 4. 3. What authority a Iustice of peace hath in cases of Misprision of Treason or felonie 17. Night-walkers ca. 44. 1. How Night-walkers are to be punished S. 1. 18. Peace ca. 45. 1. The power of the Iustice of Peace for the keeping of peace Sect. 1 2. 19. Posse comitatus containing two Chapters viz. 46. and 47. 1. Who may raise Posse comitatus and for what cause S. 1 4. 2. Who ought to assist when Posse comitatus is required S. 1 2. 3. The number requisite how they shall be armed Sect. 3. 1. A Iustice
Fuller Shereman and Dyer shall duely doe his labour in his occupation upon paine to yeeld to the party grieved in this behalfe his double damages 2. And that every Fuller Fuller in his Craft and occupation of fulling rowing or tazeyling of cloth shall exercise tazells and no Cardes deceiptfully empayring the same cloth upon paine to yeeld to the party grieved his double damages 3. And that every Iustice of peace for the time being of every County of this Realme throughout the same County out of Cities Burroughes and Townes where any Maior Maister Warden bailiffe or bailiffes is or be and every Maior where there is no maister and every maister where there is no Maior and every bailiffe or bailiffes where there is no Maior nor maister and every Portreve where no Maior maister bailiffe nor bailiffes is or be of every City Burgh and Towne within every such County aforesaid and every Constable of hundred where any Constable of hundred is out of every Citty Burgh and Towne where any Maior Maister Bailiffe or Bailiffes or portrives is or be And every Steward keeping or holding Wapentake or Leete of any person out of City Burgh or Towne where no Maior Maister bailiffe or bailiffes or portreves is or be shall have power and authority by this ordinance to heare and determine the Complaints of every such cloth-maker and labourer aswell for non payment of the said labourers wages as of the said forfaiture and damages by due examination of the parties in this behalfe thereupon for non payment of the said duties and forfaiture and for the said damages to commit the said offendors in this behalfe to the next gaole within the same County there to remaine till the said duties forfaitures and damages be duely paid to the said labourer or cloth-maker And also that every of the said Iustices of P. Maior Maister Warden bailiffe or bailiffes portreve and steward or Wapentake and Leete upon the information or complaint of any other person which is not grieved in this behalfe shall have power by the said authoritie within his jurisdiction to cause the party to come before him against whom such Information or complaint shall be made for offending this ordinance and to examine them in and upon the matter contained in the same information or complaint And if the party by examination or other due proofe be found guilty or defective that then the same party as often and for every time that he is so found guilty or defective shall forfeite to the King or to such person or persons which is or be intituled to have fines or amerciaments for offences done within there Iurisdiction three shillings and foure pence And that every of the said Iustices of peace and other officers aforesaid within their Iurisdiction upon every of the said Informations or complaints shall have full power to make like proces against the party upon whom any such Information or complaint as before is rehearsed shal be made to cause him personally to appeare before him thereupon to be examined as Iustices of peace have upon Information or complaint made to them for surety of the peace without any Fee or reward to be taken or had by any of the said Iustices or any other officer in this party for the execution of their offices in this behalfe Constables CHAP. 8. 1. EVery Iustice of peace may cause two Constables to be chosen in each hundred or barony And this is to be understood of the high Constables of hundreds and it is implyed of congruence that he sweare them 13. Ed. 1. ca. 6. and this seemeth to bee by vertue and force of the statute of Winchester made 13. Ed. 1. and of the first Assignavimus of the Commission of the peace 2. 13. Ed. 1. ca. 6. Note that these Constables of hundreds were first ordained by the said statute of Winchester tempore Ed. 1. And they were to make view of armour twice every yeare and to present before Iustices assigned defaults of Armour of Watches of high-waies and of Huy and Cry and also all such as lodged strangers for whom they would not answere 3. See stat 4. Ed. â— ca. 3. 10. Petie Constables in Townes and parishes were after devised for the aide of the Constables of the hundred viz. about the beginning of the raigne of K. E. 3. as appeareth by Master Lambert in his booke of the duties of Constables pag. 9. 4. The chusing and swearing of these petty Constables is reputed properly to belong to the Court Leet One Iustice yet we finde it usuall and warranted by common experience that every Iustice of Peace doth also sweare them 5. And here for the better chusing of these Constables you shall understand that the law requireth that every Constable be Idoneus homo Co. 8. 41. that is apt and fit for the execution of the said office and he is said in law to bee Idoneus who hath these three things honestie knowledge and abilitie 1. Honestie to execute his office truely without malice affection or partialitie 2. Knowledge to understand what he ought to doe 3. Ability aswell in substance or estate as in body that so he may intend and execute his office diligently and not through impotency of body or want to neglect the place 6. And if any shall be chosen Constable which is not thus inabled and qualified he may by Law be discharged of his said office and another fit man appointed in his place 7. Also by a statute made in Ireland in the fifth yeare of the Raigne of King Edward the fourth it is ordained that in every English Towne of this land that hath more then three houses holden by Tenants where no other president is be chosen by his neighbours or by the Lord of the same Towne one Constable to be president and governour of the same Towne Co. 8. 42. 5. Ed. 4. ca. 5. in Ireland in all things that pertaineth to the common rule of the same Towne as is in ordinance of night watch from Michaelmas to Easter yearely under paine of three pence every night and also to ordaine one paire of Buts for shooting within the Towne or well neare upon the Costs and labour of the said Towne under paine of two shillings from one moneth to other after the publication hereof till the Constable be made and the Buts also and that every man of the same Towne in such houre as the Constable or his Deputy of his neighbours will assigne that is betwixt threescore and sixteene yeares of age muster before the Constable or his deputy at the said Buts and shoot up and downe three times every feast day betwixt the first of March and the last day of Iuly under paine of one halfe penny for every day and that all these paines belevied of their goods or wages from moneth to moneth by the Constable to be spent in strengthning of the same Towne or otherwise in his default to be
levyed by the Warden of the peace and that the paines lost be spent upon the Townes where the said paines riseth 8. Also by a statute made in Ireland in the tenth yeare of King Henry the seventh it is ordained That every subject having goods and Chattels to the value of Ten pounds have an English Bow and a sneafe of Arrowes according every subject having goods to the value of 20. l. have a Iacke Sallet and English Bow and a sheafe of arrowes every Freeholder having land to the value yearely of foure pounds have his horse Iacke Sallet Bow and Sheafe of Arrowes every Lord Knight and Esquire within the said land have for every yeoman daily in their houshold Iacke Salet Bow and Arrowes to the intent that all the Commons of the said land may be able to doe the King or his Lievetenant service for their owne defence and suretie And that if the foresaid persons or any of them doe not observe and performe the premises as it is before specified that then they and every of them doe forfeit to the King 6. s. 8. d. as often times as they and every of them shall offend the foresaid ordinance And likewise that there be in every Barony within every Shire of the said land two Wardens of peace having authority as it hath been used of old time and in every parish Constables of able persons inhabitants within the said parishes and a paire of Buts to be had within every of the foresaid parishes at the cost of the said parishioners that the Commons of the said land may the sooner attaine the practise and experience of Archers And that the foresaid Constables in every parish upon paine of forfeiture of 12. d. at every default doe call before them or one of them every holy day all and every of the foresaid persons having Bowes and Arrowes as afore is rehearsed 10. H. 7 ca. 9. in Ireland to shoot and cause them to shoot at the least two or three games at the said Buts and if any of the said persons make default at any holy day without a reasonable cause shewed that then the said Constables have full power and authority to record their defaults and amerce them and every of them at every such default in 4.d and the said Constables to present the said amerciaments in writing to the Barons of the Kings Eschequer in the said land to be levyed and perceived in like manner and forme as the Kings Revenues have beene levyed there Felonie CHAP. 9. 1. EVery Iustice of peace by force of the first Assignavimus of the Commission may cause fresh suite Huy and Cry and search to be made by the Sheriffe bailiffes Constables and others upon any Treason robbery theft or other felony and also may cause the Constables to arrest and to imprison all such as shall be suspected of such Treason or felony or to be Theeves Murderers or Felons 2. Also every Iustice of peace may and must take the examination of all such felons or persons suspected of treason or felony as shall be brought before him 10. Carolica 18. and must also take information against them of those that bring them sc of the fact and of circumstances thereof and must put in writing such examinations and informations or so much thereof as shall be materiall to prove the felony and must certifie them to the next generall gaole delivery and after such examination and information taken then must commit such traitors or felons to the gaole if they be not baileable but if they be baileable then there must be two Iustices together the one of them of the Quorum to bayle them or else they cannot be bailed 3. The Iustice of peace that taketh the examinations must by recognisance binde the Informers that doe declare any thing materiall to prove the felony or treason to appeare and give evidence against the felon at the next generall gaole delivery to be holden within the County City or Towne corporate where the triall of the said offence shall be Stamf. 58. Li. intr 385. Co. 9. 118. 4. The Iustices of peace in the County of Dublin as well by vertue of their Commission as also by force of the statutes of 18. E. 3. 2. 34. Ed. 3. 1. 17. R. 2. 10. have authority to heare and determine all felonies for the words of the Commission to that purpose are Audiendum terminandum ad delinquentes castigandum puniendum 5. Also there be divers statutes which by speciall words did ordaine that the Iustices of peace should have authority at their generall quarter Sessions to inquire of heare and determine certaine felonies As the statutes 18. H. 6. 19. and 1. Ed. 4. for felonies presented before Sheriffes in their Turnes or law dayes Cromp. 5â— 6. And yet there be some felonies which the Iustices of peace cannot heare or try at all neither can they enquire thereof nor otherwise deale therewith as it seemeth as namely â— H. 6. â—2 12. Co. 11. 34. 7. Embeazelling of any record writ returne panel proces or warrant of Atturney in the Chancery Eschequer the one bench or the other or in the treasury whereby any judgement shall be reversed Every such offence is made felony in such imbezellor stealer or taker away and in their procurors Counsellors and abettors by the statute of 8. H. 6. But such offences are by the same statute appointed to be tryed by a Iury whereof the one halfe shall be of the men of the same Courts and before the Iudges of the said Courts of the one Bench or of the other 2. R. 3. fo 10. 8. Razing of any such record is also felony within the said statute of 8. H. 6. and to be tryed as aforesaid Br. Coro 174. 9. Forging of any deed or writing sealed or of any Court Roll will or acquittance Or to cause or assent to be made any such forged writing or to publish or shew forth in Evidence any such forged writing knowing the same to be forged If any person being once lawfully convicted of any of the said offences shall afterwards commit any the said offences againe 2â— El ca. 4. in Ireland every such second offence is made felony by the statute of 5. El. ca. 24. in England But by the same statute such offences are to be inquired of heard and determined by and before Iustices of Oyer and Terminer and Iustices of Assize which statute is enacted in Ireland in Anno 28. El. ca. 4. 10. And therefore whereas one R. Smith was indicted at the Sâ—ssions of the peace in the County of Oxford upon the said statute of 5. Elizab. for forging of a false deed it was adjudged by the whole Court in the K. bench Anno 30. Co. 9. 118. Elizab. that the said indictment was not well taken For although the Iustices of peace by their Commission have power of Oyer and Terminer to heare and determine felonies and trespasses
usually weare or shall make any use of such weapons as he doth find in the house to defend his possession therewith these are forceible Deteiners within these statutes 33. If a man that hath peaceably entred into an house will bestow men with force scil with harnesse Ibid. guns or other weapons in some other house or place not farre distant to the intent that they may be ready to assault such as shall enter upon him this is a deteiner with force Cromp. 69. 34. So is it if the disseisor of a house or land shall forestall the way of the dissesee with force and Armes so that the disseisee dareth not enter nor come neere thereto for feare of death c. Dalton pag. 35. So is it if a man shall keepe his cattell in another mans ground by force P.R. 39. claming Common there when he hath no Common in this case the Iustice of peace upon complaint to him made may remove this force And upon view thereof may record it and may commit such offendors to prison and may fine them but cannot award restitution By words 36. Also there may be a forceible deteining of possession by word only without any forceible Act. Cromp. 70. P.R. 39. 37. As if A. hath wrongfully though peaceably entred into the house or upon the land of B. and hath put out B. and shall presently threaten or say to B. that if he doe come thither againe to enter he will kill him This seemeth a forceible Entrie by A. and if B. shall afterwards come againe to make his Entrie and then A. shall threaten to kill him if he entreth there this is a forceible deteiner in A. 38. And it seemeth that to threaten to maime beate or to doe other bodily hurt to B. in the case aforesaid amounteth to a forceible Entrie or deteiner for that death may ensue upon such beating or hurt See 39. H. 6. 50. 7. E. 4. 21. 39. H. 6. 50. 39. But to threaten to burne the house or to spoile his goods therein if B. shall come thither to enter againe this seemeth not to amount to any such matter Br. Dures 9. 12. 16. for that B. may afterwards have his action for the burning of his house or spoyling of his goods and shall thereby recover damages to the value thereof c. 40. Also when B. shall come to make his Entrie as aforesaid Cromp. 70. if A. shall say to him that he will not open the doore this is no forceible deteiner 41. So it is if A. be in possession of a house Cromp. 73. or hath a lease thereof at the will of B. and after B. entreth into the house and commandeth A. to goe out and to leave him the possession and A. will not goe out this is no force for refusing or denying only to goe out is no force unlesse there be withall some forceible Act or threatning speeches ubi factum nullum ibi fortia nulla where there is no fact there is no force Co. 4. 43. 42. A morgageth his house to B. upon condition that if A. shall pay to B. such a day 40. Dalton pa. 181. l. then the said morgage and feoffment to be voide and by agreement of them both A. the morgager continueth the possession untill the day of redemption at which day A. payeth not the 40. l. and after B. commeth to reenter and A. keepeth the possession by force this is a deteiner by force in A. by the opinion of Master Richard Godfrey in a case betweene Willowes and Thurger which opinion I conceive to be good Law for the possession of the morgager after the morgage by agreement was in Law the possession of the morgagee 43. Cromp. 69. The disseisor maketh a gift in Taile to B. who keepeth the land with force at the time when the disseisee maketh his claime which claime is made within the view so neare as he dareth Litt. 429. for feare of death battery or other bodily hurt if B. after such claime shall continue the possess with force he may be thereof indicted for this amounteth to a new Entrie and a deteiner with force by B. 44. And note that wheresoever mine Entrie is lawfull Dalton pag. 181. if the possess be deteined or holden from me by force I may pray the aide of the Iustices of peace to remove such force as it seemeth 45. Rent Cromp. 70. P.R. 63. Dalton pa. 181. If a man hath a Rent or common of pasture out of another mans land and comming to distraine for his rent or to use his common he is so forceibly resisted by the Tenant of the land that he cannot or dareth not either distraine for his rent or take the benefit of his common This is a holding with force in the Tenant and punishable by these statutes 46. Cromp. 69. So it is if the Tenant of the land shall forestall the way with force and Armes or shall threaten him that hath the rent or Common so that he dareth not to come to distraine for his rent nor to take his Common 47. So it is if a man shall distraine for his rent Ibid. Dalton 181. 182. and the Tenant of the land shall make rescous with force and Armes 48. And in these cases of a rent or common the Iustice of peace upon complaint to him made may remove such force and upon view of such force may record it and may therefore imprison and fine such offendors but cannot award restitution sc cannot restore the party to his rent or Common which are to be taken and used in another mans land for restitution is not to be made but only of the house or land as you may see hereafter in its proper place Who may commit a forceible Entrie c. CHAP. 31. 1. ONe person alone may commit or make a forceible Entrie or deteiner The persons if so be he doe it with offensive weapons or doe use turbulent behaviour to the terror or Affray of others Dalton 182. Cromp. 69. 2. An infant of the age of Eighteene yeares by his owne Act may commit a forceible Entrie or deteiner and so he may though he be under Eighteene Dalton 18â— yet it shall be good discretion in the Iustices of P. to forbeare the imprisonment of such Infants See Br. Impris 43. 45. 75. 101. 3. But if an infant commandeth another to enter or hold with force to his use Dalton ibid. which is done accordingly yet the Infant shall not be punished for such offence for his commandement therein was voide Cromp. 69. 16. Ass 7. Br. Impris 45. 53. See more after in the title riot 4. Also a feme Covert by her owne Act may commit a forceible entry or deteiner and upon the Iustices view of the force she shall be imprisoned and it seemeth also she may bee fined in such case But such fine set upon the wife shall not be
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
first then B. shall not have any restitution otherwise if these had been found by severall Inquisitions Who shall award and make this restitution CHAP. 35. 1. AFter the force is found by the Enquest the Iustice of peace before whom the said force shall be so found may himselfe put the party in possession againe Dalton 195. or he may make his precept under his owne teste alone to the Sheriffe to doe it 2. The forme of the precept to the Sheriffe to make restitution you may see postea tit of Warrants and presidents 3. 3. Eliz. Dalis Co. 11. 59. 65. Dyer 187. But no other Iust of peace hath any authority by the statute to grant or award restitution but only he or they before whom the force was found by Inquisition nay the Iust of Oyer and Terminer nor the Iust of goale deliverie cannot grant restitution nor the Iustices of peace at their generall Sessions of the peace cannot grant this restitution except the indictment were found before them 4. And yet the Iustices of the Kings Bench in regard of their supreme authoritie in all cases of the Crowne either upon certificate to them made by the Iustice of peace Co. 9. 118. Co. 11. 65. 4. H. 7. 18. before whom such force was found of the presentment of such force or if the said presentment or indictment shall be removed before them by Certiorari in both these cases the Iustices of the Kings Bench may award restitution Dalton p. 195. 5. But neither the Iu. of the K. Bench nor any other besides him or them that made the inquiry can personally restore the party but only by way of Precept to the Sheriffe 6. The Sheriffe if need be may take the power of the County to execute the precept of the Iu. of peace herein 7. And if the Sheriffe upon such a precept or upon a writ of restitution from the Sessions c. shall returne that he cannot make restitution for resistance Dalton p. 195. c. he shall be amerced for making such a returne because in such case he might have taken the power of the County to assist him therein see the like case Fitz. Execution 147. To whom restitution shall be made CHAP. 36. 1. THis restitution ought to be made to him that was put out and to none other for so are the words of the statute P. R. â—8 2. Therefore if a father be put out by force and dyeth his heire shall not have restitution Dalton p. 195. yet here the Iustices may imprison and fine the offendors for by such forceible Entry they have broken the peace 3. Also if after the death of the Father a stranger abateth or entreth into his land by force Dalton p. 196. before the heire hath gotten actuall possession indeed the heire shall not have restitution because he had but a possession in law descended upon him 4. The disseisee doth put the disseisor out with force the disseisor shall be restored Fitz Na Br. 248. h. for upon an indictment of force the right or title is not disputable or materiall but by the words of the statute of 8. H. 6. ca. 9. hee that is in such sort sc forceibly put out shall bee restored Dyer 12â— 5. Yet it seemeth in this case that upon traverse tendred by the disseisee and his right appearing the Iust of peace may stay restitution Br. force 6. 6. Also if the disseisor be restored againe yet the disseisee may after reenter peaceably or have his Assise 7. But if the disseisee shall enter peaceably upon the disseisor and so they both shall abide and continue there together Cromp. 163. for divers daies and after the disseisee doth put out the disseisor with force and is thereof indicted here it seemeth the disseisor shall not be restored for the disseisors possession was avoided in quiet manner at the first entry of the disseisee and so the disseisor had no possession in the eye of Law when he was put out 8. If the disseisee shall enter peaceably Cromp. 162. 164. Dalton 196. the disseisor and his family being abroad and after the disseisee shall keepe his possession with force the disseisor shall not be restored by reason of the eigne title of the disseisee and for that he entred peaceably 9. But here the disseisee shall bee imprisoned and fined for keeping his possession with force for Forceible keeping or detaining is aswell prohibited as Forceible Entrie 10. And here note that the being of a mans wife children Cromp. 164. Fitzh Assise 418. of servants in the house or upon the land doe preserve his possession but his cattell being upon the ground doe not preserve his possession 11. Also when two are in possession of an house c. and the one claimeth by one title and the other by another title Litt. 140. Park 45. here the law shall adjudge him to be in possession who hath the best right to the possession So that if A. shall wrongfully enter upon B. and they both shall continue in the house and after B. shall put out A. with force A. shall not be restored for A. never gained any possession by his Entry 12. Two Iointenants or Tenants in Common Fitz. 249. d. and one of them doth forceibly put out the other out of his possession he that is so expelled may have an action of Trespasse of Forceible Entry against his Companion upon the statute of 8. H. 6. and thereupon he shall have a writ of restitution to restore him to his former estate P. R. 39. but it seemeth the Iustice of peace can doe nothing herein for that his entry and possession is lawfull through the whole land in respect of his owne moity and estate 13. Two Iointenants be put out with force Dalton p. 197. and one of them only sueth to have restitution restitution shall be made unto him 14. Coppiholder lessee for yeares or tenant at will 10. Carol. c. 13. tenant by Elegit statute merchant or of the Staple shall have restitution by the statute of 10. Caroli in Ireland 15. If Lessee for yeares be put out of his Terme by force and die P. R. 38. though after his death this force be found by Inquisition taken by a Iustice of peace Dalton pa. 197. yet his executors shall not be restored to that land by the Iustice for that they are not the same person which was put out What causes there may bee for staying the Iustices of peace from granting Restitution CHAP. 37. 1. ALthough the partie thus to be indicted for a force Cromp. 162. Br. force 11. shall not be heard nor suffred to give his Title in evidence to excuse himselfe of his Forceible Entrie or detayner Dalton p. 197. to save his fyne due to the King for such force which fyne he shall make though his right bee never so good Lambert pa. 147.