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enacts, “ That if any person or persons shall, willingly and of pur

pose, maliciously or contemptuously, come into any cathedral or parish church, chapel, or other congregation permitted by this "act, and disquiet or disturb the same, or misuse any preacher or

teacher; such person or persons, upon proof thereof before any “justice of peace, by two or more sufficient witnesses, shall find “two sureties to be bound by recognizance in the penal sum of “ fifty pounds; and in default of such sureties shall be committed " to prison, there to remain till the next general or quarter ses“sions; and upon conviction of the said offence at the said general “ or quarter sessions, shall suffer the pain and penalty of twenty “pounds,” to the use of the king.

Before this statute the court of King's Bench refused to grant a certiorari to remove an indictment at the sessions against a person not behaving himself modestly and reverently at the church during divine service; for, although the offence was punishable by ecclesiastical censures, the court considered it properly to come within the cognizance of the justices of the peace. (9) An indictment upon the statute, found at the quarter sessions, may be removed by certiorari before verdict, notwithstanding the words of the statute, which seem at the first view to confine the cognizance of the offence to the justices in the first instance, and in the next to the quarter sessions. (r)

The oaths taken by a preacher under this act are matter of Points derecord, and cannot be proved by parol evidence: but it is not ne

this statute. cessary, upon an indictment for disturbing a dissenting congregation, to prove that the minister has taken the oaths. ($) It is no defence to such an indictment that the defendant committed the outrage for the purpose of asserting his right to the situation of clerk. (t) And it has been held that a congregation of foreign Lutherans, conducting the service of their chapel in the German language, are within the protection of the statute. (u) Upon the conviction of several defendants, each of them is liable to a penalty of twenty pounds. (w)

A late statute makes further provision for the punishment of 52 Geo. 3. c. persons disturbing religious assemblies; and enacts, “ that if any 155. further

person or persons do and shall wilfully and maliciously or con- Against the temptuously disquiet or disturb any meeting, assembly, or con- disturbance gregation of persons assembled for religious worship, permitted of religious or authorized by this act, or any former act or acts of Parlia

assemblies. “ ment, or shall in any way disturb, molest, or misuse any

preacher, teacher, or person officiating at such meeting, assem

bly, or congregation, or any person or persons there assembled; “ such person or persons so offending, upon proof thereof before

any justice of the peace by two or more credible witnesses, shall “ find two sureties to be bound by recognizances in the penal sum “ of fifty pounds to answer for such offence; and in default of “ such sureties shall be committed to prison, there to remain till “ the next general or quarter sessions; and upon conviction of the

cided upon

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(9) Rex v. -, 1 Keb. 491. 5 Burn. Just. Public Worship, p. 111.

(r) Rex v. Hube, 5 T. R. 542.
(8) Rex v. Hube, Peake R. 131.

(1) Id. Ibid.
(u) Id. Ibid.
(W) Rex v. Hube, 5 T. R. 542.

“ said offence at the said general or quarter sessions shall suffer “the pain and penalty of forty pounds." (3) A subsequent section of the statute provides that nothing contained in the act shall extend to Quakers, nor to any meetings or assemblies for religious

worship held or convened by them. (y) Certiorari, It has been holden upon this statute, in conformity to the deci

sion which has been mentioned upon the 1 W. and M. c. 18. (7) that an indictment found at the quarter sessions may be removed into the court of King's Bench by certiorari before trial. (a)

A similar provision to that contained in the 1 W. and M. c. 18. 32. disturbing s. 18.(b) relating to Protestant dissenters, is enacted in the 31 Geo.

3. c. 32. s. 10. with respect to Roman Catholic congregations, or gregations. assemblies of religious worship permitted by the latter statute. Conspiracies

The facts attending disturbances of religious assemblies may or riots. sometimes authorize proceedings at common law for a conspiracy

or a riot : (c) and we have seen that by the enactment of a statute of George 1. if persons riotously assembled begin to demolish or pull down any church, chapel, or building for religious worship, certified and registered according to the 1 W. and M. sess. 1.c. 18., they will be guilty of felony without benefit of clergy. (d)

31 Geo. 3. c.

Roman Catholic con

(2) 52 Geo. 3. c. 155. s. 12.
(y) Id. s. 14.
(z) Rex v. Hube, anle, 281.
(a) Rex v. Wadley, 4 M and S.508.

(b) Ante, 280.
(c) See Preced. 2 Chit. Crim. L. 29.
(d) Ante, 251.

CHAPTER THE TWENTY-NINTH.

OF FORCIBLE ENTRY AND DETAINER.

A FORCIBLE entry or detainer is committed by violently taking or Offence at keeping possession of lands and tenements with menaces, force, common law. and arms, and without the authority of the law. (a) It has been laid down in the books that, at common law, and before the passing of the statutes relating to this subject, if a man had a right of entry upon lands or tenements, he was permitted to enter with force and arms; and to detain his possession by force, where his entry was lawful:(b) and that even at this day he who is wrongfully dispossessed of his goods, may justify the re-taking of them by force from the wrong doer, if he refuse to re-deliver them. (c) However, it is clear that, in many cases, an indictment will lie at common law for a forcible entry, if it contain, not merely the common technical words, “with force and arms,” but also such a statement as shews that the facts charged amount to more than a bare trespass, for which no one can be indicted. (d) And, in a modern case in the court of King's Bench, it was mentioned, by the great Judge who then presided in that court, as a part of the law which ought to be preserved, that no one shall with force and violence assert his own title. (e) But on a subsequent day of the same term he said that the court wished that the grounds of their opinion in that case might be understood, and desired that it might not be considered as a precedent in other cases to which it did not apply. He then proceeded : “Perhaps some doubt may hereafter “arise respecting what Mr. Serjeant Hawkins says, that at com

mon law the party may enter with force into that to which he “has a legal title. But without giving any opinion concerning " that dictum one way or the other, but leaving it to be proved or

disproved whenever that question shall arise, all that we wish to say is, that our opinion in this case leaves that question untouched; it appearing by this indictment that the defendants (a) 4 Blac. Com. 148.

1702. Rex v. Wilson and others, 8 (0) Dalt. Just. 297. Lamb. 135. T. R. 357. in which last case the inCrom. 70. a, b. 1 Hawk. P. C. c. 64. dictment charged the defendants & 1, 2, 3. 3 Bac. Abr. Forcible Entry (twelve in number) with having unlawand Detainer,

fully and with a strong hand entered, (c) I Hawk. P. C. c. 64. s. 1.

&c. and it was held good. (4) Rex v. Bake and others, 3 Burr. (c) By Lord Kenyon, C. J. Rex v. 1731. Rex v. Bathurst, Say. 223. re- Wilson and others, 8 T. R. 361. ferred to io Rex v. Storr, 3 Burr. 1699,

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statutes.

may commit

the offender until fine and ransom.

“ unlawfully entered, and therefore the court cannot intend that

“ they had any title.” (f) Offence by Whatever

may

be the true doctrine upon this subject at common law, the statutes which have been passed respecting forcible entries and detainers are clearly intended to restrain all persons from having recourse to violent methods of doing themselves justice: and it is the more usual and effectual method to proceed upon these statutes, which give restitution and damages to the party

grieved. Statutes, 5 R,

By the 5 R. 2. c. 8. none shall make entry into any lands and 2. c. 8. None tenements but in cases where entry is given by the law; and in

enter to lands, &c. such cases not with strong hand, nor with multitude of people, with strong

but only in a peaceable and easy manner, on pain of imprisonment hand. and ransom.

This statute gave no speedy remedy, leaving the party injured to the common course of proceeding by indictment

or action; and made no provision at all against forcible detainers. 15 R. 2. c. 2. The 15 R. 2. c. 2. goes further, and enacts, that on complaint of On complaint forcible entry into lands and tenements, or other possessions whatentry, justices soever, to the justices of peace or any of them, the justices or

justice take sufficient power of the county, and go to the place where the force is made; and if they find any that hold such place forcibly, after such entry, they shall commit them to the next gaol, there to abide, convict by the record of the same justices or justice, until they make fine and ransom: and that the people of the county and the sheriff shall assist, &c. on pain of imprisonment and fine. And it also enacts, that it shall be done in the same manner of them that make such forcible entries in benefices or offices of holy church. But this statute gave no remedy against those who were guilty of a forcible detainer after a peaceable entry, nor against

those who were guilty of both a forcible entry and forcible detainer, if they were removed before the coming of a justice of peace; and it gave no power to the justice to restore the party injured to his possession, and did not impose any penalty on the sheriff for disobeying the precepts of the justices in the execution of the statute. Further enactments were therefore necessary. (g)

The statute 8 H.6. c. 9. enacts, that though the persons making Justices may forcible entries be present or else departed before the coming of enquire as well of those the justices or justice, the same justices or justice, in some good that make town next to the tenements so entered, or in some other convenient forcible en

place, according to their discretion, shall have authority to enquire, tries as of

by the people of the same county, as well of them that make such hold lands, &c. forcible entries in lands and tenements as of them which hold the

same with force; and if it be found that any doth contrary to this statute, then the justices or justice shall cause to re-seise the lands and tenements, and shall put the party in full possession as before. (h) And after making provision concerning the precepts of the justices to the sheriff to return a jury to enquire of forcible entries, the qualification of the jurors, and the remedy by action

8 H. 6. c. 9.

those that

with force.

(f) 8 T. R. 364.

collected in 3 Bac. Abr. Forcible En(g) Upon the imposing and levying try and Detainer, (A) in the notes. the fine under this statute of R.

(h) S. 3. 1 Hawk. P. C. c. 64. s. 8. and the cases

see

three years.

against those who obtain forcible possession of lands, &c. it enacts, that mayors, &c. of cities, towns, and boroughs, having franchise, shall have in such cities, &c. like power to remove such entries, and in other articles aforesaid, rising within the same, as the justices of peace and sheriffs in counties. (i) And it is then provided, This statute “ that they which keep their possessions with force in any lands does not ex

or tenements, whereof they or their ancestors, or they whose who maintain “ estates they have in such lands and tenements, have continued possession af“their possessions in the same by three years or more, be not ter peaceable “ endamaged by force of this statute.” (k) This proviso is further enforced by a statute, 31 Eliz. c. ll. 31 Eliz

. c. 11. which enacts, “That no restitution, upon any indictment of for- No restitution

to be made if “ cible entry, or holding with force, be made to any person or

the party inpersons,

if the person or persons so indicted hath had the occu- dicted hath pation, or hath been in quiet possession by the space of three been three “whole years together next before the day of such indictment so years in quiet “ found; and his, her, or their estate or estates therein not ended and his estate “ or determined, which the party indicted shall and may allege not ended. “ for stay of restitution, and restitution to stay until that be tried, “ if the other will deny or traverse the same: and if the same al- Costs.

legation be tried 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 judges

or justices before whom the same shall be tried; the same costs “ and damages to be recovered and levied as is usual for costs and “ damages contained in judgments upon other actions.”

In the construction of these statutes it has been holden, that if Doubt upon a lessee for years or a copyholder be ousted, and the lessor or the statutes lord disseised, and such ouster, as well as disseisin, be found in an

whether lessee

for years or indictment of forcible entry, the court may, in their discretion, copyholder award a restitution of the possession to such lessee or copyholder; pusted by the which was, by necessary consequence,

re-seisin of the freehold lessor or lord

could have also, whether the lessor or lord had desired or opposed it. But it restitution :was a great question, whether a lessee for years or a copyholder, being ousted by the lessor or lord, could have a restitution of their possession within the equity of 8 H. 6., the words of which are, that the justice “shall cause to re-seise the lands,” &c. and by which it seems to be implied that the party must be ousted of such an estate whereof he may be said to be seised, which must at least be a freehold. For the purpose of removing this doubt, it was removed by enacted by 21 Jac. 1. c. 15. that such judges or justices of the 21 Jac. 1. c. 15. peace as by reason of any act of Parliament then in force were authorized to give restitution to tenants of any estate of freehold of their lands, &c. entered upon by force, or withholden by force, shall have the like authority (upon indictment of such forcible entries or forcible withholdings) to give like restitution of possession to tenants for term of years, tenants by copy of court roll, guardians by knight's service, tenants by elegit, statute merchant and staple. It has been holden, that a tenant by the verge is not within this statute : but the propriety of this decision is doubted; as such person, having no other evidence of his title but by the

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