2 R. Abr. 80. some have said that this seeming repugnancy may be reconciled, by intending that the disseisee might re-enter after the time of the disseisin, and before the finding of the indictment. However, it seems clear that, if the words adhuc extratenet be added, such a repugnancy cannot be helped by any intendment; and that no restitution can be awarded on such an indictment, whether those words adhuc extratenet be in it or not, because the party grieved appears by the indictment itself to have had the freehold at the time of the finding thereof. Sect. 40. FIFTHLY, It hath been resolved, that an indictment. of a forcible detainer, without shewing that the defendant made an entry into the same lands, is not good; because the statute doth not prohibit one, who hath always been in possession, to maintain the same with force. And it seems clear, that a conviction of a forcible detainer upon view, by force of 15 Rich. 2. cannot be good, unless it shew that the defendant was also guilty Palm. 195, 196, of a forcible entry; for the words of that statute are, "that at all 197. C. Jac. 19, 20. C. Eliz. 915. B. R. Hill. 1708. 2 R. Abr. 80. Yelv. 99. C. Jac. 151. 1 Sid. 97. 99. 414. 2 Keb. 505. Videinfra, s. 59. (a) Vide Rex v. Fieldhouse, Cowper, 325. Salk. 260. Savil, 68. "times that such forcible entries are made, and complaint thereof "cometh to the justices, &c. that the same justices, &c. shall go, "&c. and if they find any that hold such place forcibly, after such "entry made, &c." by which it is plain, that the justices have no jurisdiction by force of this statute, but where the entry, as well as detainer, was forcible. Yet in Leighton's Case it was resolved, that such a forcible entry is sufficiently set forth in the complaint recited in such conviction; and it is plain, that the statute could not intend that the forcible entry should be viewed, because it is to precede the proceedings of the justices: but perhaps it is the better opinion, that an indictment upon 8 Hen. 6. setting forth an entry and forcible detainer, without shewing whether the entry were forcible or peaceable, is good; for there is no medium between a forcible and peaceable entry; and an entry not alleged to have been forcible, shall be intended to have been peaceable; or if not so, yet it seems to be no way material, whether it shall be taken to have been forcible or peaceable, because in either case it is equally within the statute, the words whereof as to this purpose are, Where any doth make forcible entry in "lands and tenements, or other possessions, or them hold forcibly;" by which it appears, that a forcible detainer is a distinct offence from that of a forcible entry, and no way depending on it; and my Lord Chief Justice Holt seemed to be of this opinion in Leighton's Case above-mentioned. However, it seems to be certain, that, if a bill both for a forcible entry and forcible detainer, be preferred to a grand jury, and found ignoramus as to the entry with force, and billa vera as to the detainer, it will not warrant an award of restitution, but is void, because the grand jury cannot find a bill true for part, (a) and false for part, as a petit jury may. 66 Sect. 41. SIXTHLY, It hath been resolved, that no indictment can warrant an award of restitution, unless it find that the wrongdoer both ousted the party grieved, and also continueth his possession at the time of the finding of the indictment; for it is a repugnancy to award restitution of possession to one who never was was in possession, and it is vain to award it to one who doth not appear to have lost it. Sect. 42. SEVENTHLY, It hath been resolved, that the time and place of the disseisin are sufficiently set forth in an indictment, alleging that the defendant tali die intravit, &c. et ipsum A. B. manu forti disseisivit, without adding the words adtunc et ibidem; for inasmuch as the entry and disseisin are both of them C. Jac. 41. 151. of the same nature, and the one of them naturally tends to cause the other, it is implied, that they both happened at the same time; and the forcible entry being the principal offence within the purview of these statutes, and the disseisin being only added to shew that the party grieved hath a right to a restitution, as to which the day of the disseisin is no way material, it seemeth to be over-nice to require a precise exactness in setting it forth; neither B. 2. c. 23. s.88. can it be to any purpose to allege that the disseisin was at the same place with the entry, since it appears from the nature of the thing that it could not but be so. Yet in an indictment of murder it is perhaps a fatal mistake, not expressly to shew the day Dyer, 68. and place of the stroke, as well as of the assault, because these offences are of different kinds, the one being only a trespass, and the other a felony, and may well be intended to have happened at different times and places: and the giving of the stroke, being the principal offence, ought to be set forth with the most exact certainty. Sect. 43. EIGHTHLY, It hath been resolved, that a disseisin is sufficiently set forth, by alleging that the defendant entered, &c. into such a tenement and disseised the party, without adding either the words (a) illicitè, or (b) expulit, (c) inde, for the word disseisivit implies as much. Sayer, 225. (a) Noy, 125. Latch, 224. 572. Sect. 44. NINTHLY, It hath been resolved, that an indictment 11 Mod. 235. which pursues the words of the statute, in alleging an entry, &c. C. Eliz. 461. to have been made manu forti, need not expressly also to say, that 2 Buls. 258. it was made vi et armis, because that is implied. Also it is said, B. 2. c. 25. s. 92. that as the want of those words will not vitiate an indictment Con. 1 Keb. which pursues the statute, so neither will the using of them make 2 Keb. 133. good an indictment which does not pursue it; yet it hath been 135. resolved, that such an indictment may be good without mention- 1 Vent. 265. ing any complaint, though the statute seems to require it; for it 3 Burr. 1699. is said, that those words in the statute are put in causâ abundanti; and that if a justice of peace have by any means whatsoever notice of a forcible entry or detainer, he may and ought to Ed. 4. 18. proceed against the same according to the said statute, as being Dalt. 25. a disturbance of the public peace, the preservation whereof was the chief end of these statutes. As to the SEVENTH POINT, viz. Of what kind of possession a restitution is to be awarded. 3 Burr. 1732. Sect. 45. It seems, that it ought only to be awarded for the Dalt. c. 81. possession of such tenements as are visible and corporeal; for no Lamb. 153. one who hath a right to such as are invisible and incorporeal, as rents, commons, &c. can be put out of possession thereof, but Co. Lit. 323. only at his own election, by a fiction of law, in order to enable See Cruize on Dalt. c. 83. Lamb. 154. him to recover damages against the person who hath wrongfully disturbed him in the enjoyment of them; for such things being mere creatures of the law, and depending entirely upon the construction thereof, are always in the possession of those whom the law adjudges to have a right to such possession; and consequently all the remedy that can be desired against a force offered to a man in respect of such like possessions, is to have the actual force removed, and the offenders punished for the same, which may be done by the force of 15 Rich. 2. &c. As to the EIGHтh Point, viz. To whom such restitution ought to be made. upon Sect. 46. It hath been holden, that it shall only be given to him who is found by the indictment to have been put out of an actual possession, and consequently that it shall not be awarded to one who was only seised in law, as to an heir whom a stranger abateth upon the death of the ancestor, before any actual entry by such heir; and from the same ground it followeth, that it shall not be granted to an heir upon an indictment, finding a forcible entry made upon his ancestor. Sect. 47. It hath been holden by some, that if a disseisee re-enter peaceably upon the disseisor, and continue for some time peaceably upon the tenements in dispute, and afterward detain them with force, the disseisor shall not be restored upon an indictment Crom. 162, 163. finding the said force, because his possession was at first peaceably defeated, and at the time of the force, he had, in the judgment of law, no possession at all. But I cannot be persuaded that this opinion is agreeable to the intention of the said statutes, the principal end whereof seems to be to oblige all persons to refer themselves to the courts of justice for the decision of their claims to the possession of land, and to restrain them from disturbing the public peace by such endeavours to right themselves; but if such a practice as this should be allowed, it would be easy to evade the effect thereof by refraining from violence at first, and then forcing the party to leave the possession of the premises after a short continuance thereon in peace; neither do I see any difference between such a continuance for the space of three days, and a continuance for three hours or minutes, inasmuch as the subsequent force is in each case equally within the mischief intended to be provided against by the statutes; and seeing the statutes of 8 Hen. 6. and 31 Eliz. c. 11. have expressly provided, that those who have been in possession for three years shall not be put out of possession by an indictment of forcible entry or detainer, it seems plainly to be implied, that no one shall have the like advantage in respect of a shorter time. Sect. 48. It will be needless in this place to shew of what kind of hereditaments, or of what kind of estate therein, the party who is to be restored must be found to have been seised or possessed, because this may sufficiently appear by what hath been said in the foregoing part of this title. As to the NINTH POINT, viz. By whom and in what manner such restitution may be awarded and given. Sect. Dalt. c. 82. Sect. 49. There is no doubt but that the same justice, before Comyns, 61. whom an indictment of forcible entry or detainer shall be found, may grant an award of restitution to the party; and it is said, 12 Mod. 495. that he may execute the same either in his own proper person, or make his precept to the sheriff to do it. 1 Sid. 156. Lamb. 184. Sect. 50. But it seems clear, that neither justices of peace, nor 1 Keb. 88. any court whatsoever, have authority to grant a restitution upon 1 Ven. 308. a conviction of any force taken by them upon view, unless the Dyer, 187. same be found by an indictment, according to the direction of Dalt. c. 82. 8 Hen. 6. c. 9. or 21 Jac. 1. c. 15. (a) Also it seems to be agreed, (a) Vide 3. that no other justices of peace, except those before whom such Com. Dig. 366. an indictment shall be found, have any power, either at sessions where it is said that a justice of or out of it, to make any award of restitution; and that no other peace or sheriff court whatsoever can personally restore the party without a pre- may break open cept to the sheriff. a house to make restitution. Keilw. 159. Dalis. 25. 11 Co. 65. 9 Co. 118. Sect. 51. Also it hath been resolved, that justices of oyer and terminer have no power, either to inquire of a forcible entry or detainer, or to award restitution on any such indictment; because when a new power is created by statute, and certain justices are assigned to execute it, it cannot regularly be executed by any other and inasmuch as justices of oyer and terminer have a commission entirely distinct from that of justices of peace, they shall not, from the general words of their commission, ad inquirend' de omnibus transgr' et de omnibus aliis articulis et causis cont' formam quorumcunque statutorum fact' sive perpetrat', be construed to have any such powers as are specially limited to justices of peace. Yet it hath been resolved, that the justices of the king's bench may award restitution upon an indictment of forcible entry or detainer removed before them, because the said justices, having a supreme and sovereign jurisdiction over all matters of a criminal and public nature, have always been esteemed to have power in See Rex v. all causes of this nature, being brought judicially before them, to Jones, Stra. give the parties such remedies in relation thereto, as they shall 474. appear to have a right to demand, either by common law or by statute. Farresl. 138. 7 Ed. 4. 18. 4 H. 7. 18. Dalt. c. 82. Dalt. c. 82. Sect. 52. The sheriff, if need be, may raise the power of the Lamb. 157. county to assist him in the execution of a precept of restitution, and therefore, if he make a return thereto, that he could not make a restitution by reason of resistance, he shall be amerced. As to the TENTH POINT, viz. How such restitution should be barred by the continuance of a possession for three years. Carthew, 496. Sect. 53. It appears from the abovementioned proviso of Salkeld, 260. 8 Hen. 6. and also by 31 Eliz. c. 11. that any one indicted upon 12 Mod. 268. these statutes may allege such possession to stay the award of Farresl. 138. restitution: in the construction whereof it hath been holden, that Dalt. c. 79. such possession must have continued without interruption during Crompton, 71. Summary, 139. B.Force, 22. 29. three whole years next before the indictment; and therefore that Dyer, 141. he who having been in possession of land for three years or more, 22 H. 6. 18. is forcibly ousted, and then restored by force of the statute of 1 Inst. 256. 8 Hen. 6. cannot justify a forcible detainer, till he have been in Raymond, 85. possession 1 Sid. 149. Dalt. c. 79. tenant's title pired, is said to be a forcible detainer. Cro. Jac. 199. 4 Comm. 149. 1 Keb. 538. R. v. Burges, Salkeld, 261. 1 Sid. 149. Raym. 84. 1 Ven. 265. 4 Comm. 148. possession again for three years after such restitution: and also for the same reason it hath been said, that he, who, under a defeasible title, hath been never so long in possession of land to which another hath a right of entry, cannot justify such a detainer at any time within three years after a claim made by him who hath such a right, because all defeasible estates in the land are wholly defeated by such a claim, and the subsequent continuance in possession amounted to a new entry. Sect. 54. There have been some opinions, that the three years possession must be of a lawful estate, and consequently that a disseisor's continuance in quiet possession for never so many years shall not justify a forcible detainer; but it seems necessary to make a distinction between a detainer against him who has a right of entry, and a detainer against a stranger, or one who by his laches has lost his right of entry; for I do not see why three years continuance of a defeasible possession should not justify a detainer by force against a stranger, inasmuch as he cannot take advantage of another's right, and bare possession is a good title against all persons, except him who hath the right, and cannot be lawfully defeated by any other. Also, if one who has the mere right to lands, have so long neglected to recover the possession thereof, till in judgment of law he hath no more right to such possession, till he has recovered it by action, than a mere stranger, there doth not seem to be any reason that he should have more advantage against a forcible detainer, than if he were a mere stranger. Sect. 55. Also it hath been holden, that a peaceable continuance in possession for three years after a forcible entry, under any title whatsoever, will not justify a forcible detainer, inasmuch as the possession was at first gained by force. But I cannot think this a reasonable construction of the said statutes, for the force in the detainer, being after three years quiet possession, seems justifiable by the express words of the statute; and where the force used in gaining a possession is afterwards wholly laid aside, there seems to be no colour to say, that it makes the subsequent possession less quiet or peaceable than it would have been, if there had been no force at all used at the first. Sect. 56. It seems clear from the express purview of the said statute of 31 Eliz. c. 11. that wherever the defendant pleadeth such a possession in bar of restitution upon such an indictment, either before the justices of peace, or in the king's bench, no restitution ought to be awarded till the truth of the plea be tried; and it hath been holden, that the plea of such a possession is good, without shewing under what title, or of what estate such possession was; because it is not the title, but the possession only, which is material in this case. Sect. 57. It seems that, from the wording of 31 Eliz. c. 11. if one who has been in possession for three years, be ousted, and the same day re-enter with force, and also be indicted for such re-entry on the very same day, it may be questioned whether the prosecutor ought to have restitution, inasmuch as the words of the |