5. Indictment for and restitution after, &c. Proceedings for before justices. Complaint made. Oath of complain ant. Summoning of defendant. View of justice. The court of Queen's Bench may also set aside the restitution, and grant re-restitution. (Id.; Ford's case, Cro. Jac. 151; Alleyn, 50.) As to how restitution is to be made, see next section. If possession under a writ of restitution be avoided immediately after execution by a fresh force, the party shall have a second writ of restitution without a new inquisition; but the second writ must be applied for in a reasonable time. (Rex v. Harris, 1 Ld. Raym. 482). VI. Proceedings before Justices for, and Restitution in case of. For a more speedy remedy, it is enacted, by stat 15 Rich. II. c. 2, 8 Hen. VI. c. 9, (ante, 76), that the party grieved may complain to any one justice, or to a mayor, sheriff, or bailiff, within their liberties. But although one justice alone may proceed in such cases, yet it may be advisable for him, if the time for viewing the force will suffer it, to take to his assistance one or two more justices. The justices may indeed, in their discretion, refuse altogether to interfere in the case. The court of Queen's Bench will not compel them to proceed. (See Ex parte Davey, 2 Dowl. N. S. 24.) Concerning this power of justices, it is, as we have seen, enacted by the above statutes that After complaint made to such justice, by the party grieved, of a forcible entry made into lands, tenements, or other possessions, or forcible holding thereof, he shall, within a convenient time, at the costs of the party grieved, (without any examining or standing upon the right or title of either party, see Dalt. c. 44, post, 87), take sufficient power of the county and go to the place where such force is made. And if the justice shall find any that hold such place forcibly after such entry made, they shall be taken and put into the next gaol, there to abide convict by the record of the said justice until they shall have made fine and ransom to the king. And all people of the county, as well the sheriff as other, shall be attendant on the justices to arrest the offenders; on pain of imprisonment and fine to the king (ante, 75). and Complaint by the Party grieved.]-Yet these words do not enforce any necessity of such a complaint; for it is holden, that the justice may ought to proceed upon any information or knowledge thereof whatsoever, though no complaint at all be brought unto him by any party grieved thereby. (Lamb. 417). It is recommended that the complainant be sworn, and do afterwards upon such oath, make his statement of his own right to the estate very particularly, and also shew the circumstances of the alleged forcible entry, or at all events of some original illegal entry. It was on account of the complaint in the case of Rex v. Oakley, (4 B. & Adol. 307; 1 Nev. & Man. 58, S. C.; ante, 81), not showing the conviction for a forcible detainer, that the original entry was either forcible or unlawful, the court quashed the conviction. (Id.) Summoning of Defendant.]-In order to justify a conviction upon the view of the justice, it is, it seems, requisite that the defendant should be previously summoned, and a conviction in such a case omitting the statement of summons, or not otherwise shewing that the defendant had an opportunity of defending himself against the ex parte charge, would, it seems, be bad. (See Rex v. Wilson, 5 Nev. & Man. 164, and 3 Ad. & Ell. 817, S. C.) Find any that hold such place forcibly after such Entry made.]—If the justice, when at the premises, do not actually have view of any continu- 6. Proceedings ing force, he cannot proceed; and supposing that the parties have been before justices guilty of a previous forcible entry, but the continuance of force has for restitution ceased, it should seem that they can only be punished by indictment at in case of. the sessions or assizes, or a jury must be empanelled to try the forcible Finding offence entry under the 8 Hen. VI. c. 9, s. 3. This may be collected from the and other proceedterms of the act, 15 Rich. II. c. 2, and from the authorities, which state ings. that "if such offenders being in the house at the coming of the justice shall make no resistance, nor make show of any force, then the justice himself cannot arrest or even remove them at all upon such view." (Dait. Just. c. 44). And see 8 Hen. VI. c. 9, s. 3, which implies that unless the justice himself view the force, he cannot restore possession. If upon the justice's arriving at the premises the doors be shut, and those within the house should deny the justice to enter, he may order an outer door to be broken open in his presence, and may enter to remove the force, (Dalt. Just. c. 44); and if such entry has been made, and the justice, shall find such force, he shall cause the offenders to be arrested and shall also take away their weapons, it is said also their armour, an cause them to be appraised, and after to be answered to the king as forfeited, or the value thereof (a). If after a strict inquiry of the complainant, it should appear doubtful whether there was any breach of the peace in the entry, or whether upon the merits the party in possession has not the better, or at least an equitable right to retain it, then the best course will be for the justices to dismiss the complaint, and leave the party to indict at the sessions, or try his right in an action of ejectment. But if a strong case of recent forcible entry, especially if attended with any aggravated circumstances of violence, should be primâ facie made out, then the justices, as conservators of the peace, ought to act, and promptly so, and to go to the premises and demand admittance, and endeavour fully to ascertain the circumstances of the original entry, and also of the continuing detainer; and unless, on his own view, he observe violence or threats of using arms to exclude the party recently expelled, or if the offenders be not present, then the justices should not act upon their own view, but if required by the complainant, should issue their warrant to the sheriff, to summon a jury from the neighbourhood forthwith, (8 Hen. VI. c. 9, s. 4); and even for the next day or shortly afterwards, (Dalt. Just. c. 133; the party traversing is to bear the costs of the trial of the traverse, and not the King or prosecutor), to try whether the entry was forcible as well as the detainer. As to the proceedings in case there is no continuance of the force in view of the justice, see post, 90. Without any examining or standing upon the right or title of either Right of claimant (a) Dalt. Justice, c. 44. In a case fully advised upon, by Sir Vicary Gibbs and Mr. Serjeant Shepherd, where a lessee held over after he had forfeited his lease by several breaches of covenant, and was committing waste after notice of his forfeiture and demand of possession, an active justice of the peace for the county of Essex, with two regular constables, in strict observance of those opinions, went to the premises, and after stating that he was a justice of the peace for the county, and that the lease was forfeited, and the right to possession vested in the landlord, demanded admittance; and being refused, the justice then stated the substance of the 6. Proceedings party.]—(Dalt. c. 44, p. 96). This position, in its application to forcibefore justices ble entries, is perfectly correct, because no man ought to assert a claim for restitution in so violent à manner; and in that case his right is not to be inquired in case of. into, (per Vaughan, B. in R. v. Williams, as stated in Dick. Sess. by Mr. Serjt. Talfourd, 239); but in its application to a mere alleged forcible detainer, it is submitted as being incorrect. If it were sustainable to its full extent, then if any party should think fit to claim the possession of a house in the lawful occupation of another, and the occupier, confident in his own just right, should refuse to deliver it, and actually defend the same, then any justice might be required to go to the place and request the occupier to give up possession; and if the latter should refuse to quit, and fasten all the outer doors, the justice might treat him as an offender, and fine and commit him to prison, and give possession to the claimant, although he had no pretence of title. This would be a most dangerous jurisdiction, especially if the justice is not to inquire or consider the right or title of either party: and yet, according to the doctrine referred to, a justice would be bound, without inquiring into the title, to turn out every person so exceedingly uncivil as not to quit instantly upon the justice's request. Neither could it have been the intention of the legislature to impose upon a justice the difficult office of deciding upon the title of either party; and if it was intended to permit interference in other cases than those where there had been originally a forcible entry by some one within three years, still it must at least have been intended to limit their jurisdiction to very clear and obvious cases of illegal withholding possession from the true owner. (2 Chit. Gen. Pract. 237). Commitment. It is, however, laid down by Serjeant Hawkins, that there may be a forcible detainer, whether the entry were forcible or not, (Hawk. P.C. c. 22); and that if a lessee, after the end of this term, keep arms in his house to oppose the entry of the lessor, though no one attempt an entry, (and see MS. case, ante, 87, note (a), where Sir V. Gibbs and Mr. Serjeant Shepherd were of opinion that the statute extended to a lessee holding over), or if a tenant at will should detain with force after the will has been determined, he will be guilty of a forcible detainer, and that so would a lessee resisting with force a distress for rent; or even, it is said, forestalling or rescuing the distress, (Com. Dig. Forcible Detainer, B 2; ante, 82); and it is also laid down, that if a mortgagor detain with force after the mortgage has become forfeited, that is a forcible detainer, though it is at the same time admitted that the mere denying possession in these cases would not amount to a forcible detainer. (Com. Dig. Forcible Detainer, B2; sed quære). It may be asked how is it certain, in the first two cases, that there may not have been a valid agreement for a new tenancy; or in the last, that the mortgagee had not agreed that the mortgagor should continue in possession as his tenant; and yet it is supposed that this is immaterial, and that the justice must proceed. It is clear, that at one stage of the indictment for a forcible entry, the continuance of the right of the prosecutor may be inquired into and it is said that if such interest has ceased, the defendant may apply to the court to quash a writ of restitution, or at least prevent its execution. (2 Chit. Gen. Pract. 238, post, 92). Shall be put in the next Gaol.]—It is said, that the justice hath no power to commit the offender to gaol, unless he do it upon his own view of the force and not upon the jury finding the same afterwards. (Dalt. c. 44; 1 Hawk. c. 64, s. 8). See form of commitment, post, No. 7. And if such offenders, being in the house at the coming of the justice, shall make no resistance, nor make show of any force, then the justice cannot arrest or remove them at all upon such view. (Dalt. c. 44). But, howsoever, if the force be found afterwards by the inquiry of the jury, the justice may bind the offenders to the peace; and if they be gone, he may make his warrant to take them, and may after send them to the gaol until they have found sureties for the peace. (Ibid.; sed quære, see 2 Chit. Gen. Pract. 234). Note.-Mr. Dalton in his place says, good behaviour, which I have presumed to alter to the peace, as deeming it much the safer; and not being sufficiently satisfied concerning the power of a justice of the peace to bind to the good behaviour in the like cases, which power Mr. Dalton hath enlarged more than all other authors, without any assistance from the commission of the peace, or any act of Parliament, other than had been for above 200 years before. Convict by the Record.]-Also such justice ought to make a record (see form, No. 6, post) of such force by him viewed, which record shall be a sufficient conviction of the offenders, and the parties shall not be allowed to traverse it: and this record, being made out of the sessions by a particular justice, may be kept by him; or he may make it indented, and certify the one part into the Queen's Bench, or leave it with the clerk of the peace, and the other part he may keep himself. For this view of the force by the justice, being a judge of record, maketh his record thereof, in the judgment of the law, as strong and effectual as if the offenders had confessed the force before him; and, touching the restraining of traverse, more effectual than if the force had been found by a jury, upon the evidence of others. (This is as to the fine and imprisonment, but not as to restitution). (15 Ric. 2, c. 2; Dalt. c. 44). The conviction on the view of the justice ought, it seems, to show that the defendant was summoned or had the opportunity of defending himself against the ex parte charge. (R. v. Wilson, 5 Ñev. & M. 164,3 Ad. & M. 817, S. C. ante, 86). The conviction for a forcible detainer must contain an adjudication of an unlawful entry. (R. v. Oakley, 4 B. & Adol. 307, ante, 81). And it seems it ought to set out the facts which show the detainer to be unlawful (R. v. Wilson, supra). Where it appears on the face of a conviction for a forcible detainer that it took place upon the view, and no mention is made of the justice's having received any evidence at the time, the court of Queen's Bench will not on its removal thereof by certiorari call for a further return of facts or evidence connected with the transaction. (R. v. Wilson, 1 Ad. & Ell. 627; 3 N. & M. 753, S. C.) 6. Proceedings before justices for restitution in case of. Record, &c. and form of conviction. Until they have made Fine.]—In the case of R. v. Sir Edw. Elwell, Fine. he was brought up upon a habeas corpus, with a return of the cause of his commitment, which was upon a conviction of forcible entry and detainer. And it being moved to discharge him upon exceptions to the commitment, the court refused to enter into the consideration of them, till the conviction was likewise regularly removed before them. But, by consent, he was bailed in the mean time. And this term the conviction being before the court, it appeared that there was no fine set by the justices, and it was therefore moved to be quashed. It was agreed on both sides that there should be a fine; but it was insisted, that it being now before the King's Bench by a certiorari, they might set the fine. But, by the court:-We are not to execute the judgment of an inferior court. The conviction is to be upon view: and they who view the nature of the force are the properest judges what fine to set: and though a certiorari should come before the fine is set, yet it would be no contempt in the justices to complete their judgment by setting one. Lambard, indeed, was of opinion, that the justices could not set the fine at all; but upon what foundation we can never imagine. The justices are not bound to do it upon the spot, but may take a reasonable time to consider of the fine, because, by the words of the act, the commitment is to be, till he has paid the fine. The conviction must be quashed, and 6. Proceedings the defendant discharged. (R. v. Elwell, 2 Str. 794; 2 Ld. Raym. before justices 1514, S. C.) for restitution in case of. Fine assessed severally. Payment of fine. Proceedings where Restitution by one justice. The same was likewise solemnly resolved in Leighton's case (1 Salk. 353) (a); and that the justice may assess the same either before the commitment or after. (1 Hawk. c. 64, s. 8). And the fine must be assessed upon every offender severally, and not upon them jointly. (Dalt. c. 44; R. v. Elwell, 2 Lord Raym. 1514; 2 Stra. 794; and see Morgan v. Brown, 4 Adol. & Ell. 515 ; 6 N. & M. 56, S. C.). Payment of Fine.]-Upon payment of the fine to the sheriff, or upon sureties found (by recognizance) for the payment thereof, it seemeth that the justice may deliver the offenders out of prison again at his pleasure. (Dalt. c. 44). As to estreating the fine, see ante, "Fines." Proceedings where there is no continuance of force in view of the Justice.] -If there should be no continuance of the force in the view of the justice, then, as we have seen, he could not restore possession; and therefore it was found that many offenders took care to avoid all appearance of force in the presence of the justice, and thereby still maintained their possession, and ousted the party injured of his summary remedy. To prevent that injustice, the subsequent act, 8 Hen. VI. c. 9, ss. 3, 4, enacts, "And moreover though such persons making such entry be present, or else departed before the coming of the said justices or justice, nevertheless the same justices or justice shall have authority and power to inquire, by people of the same county, as well of them as make such forcible entries as also of them that hold with force, and if the jury shall find that the parties had offended against the statute, then the justice shall put them out, and restore the person forcibly disseised." Restitution by one or more Justices.]—We have just seen what power and authority a justice has in these cases concerning removing the force: but the party ousted cannot be restored to his possession by the justice's view of the force, nor unless the same force be found by the inquiry of a jury. Concerning which it is, as we have seen ante, 76, by stat. 8 Hen. VI. c. 9, s. 3, enacted, "And though that the persons making such entry be present, or else departed before the coming of the justice, he may notwithstanding, in some good town next to the tenements so entered, or in some other convenient place by his discretion, (and that though he not to see the place where the force is, Dalt. c. 44), have power to inquire by the people of the county, as well of them that make such forcible entry, as of them which hold the same with force." go Sects. 4, 5. "In order to which the justice shall make his precept (Form No. 8, post, 95) to the sheriff, commanding him in the King's behalf to cause to come before him, sufficient and indifferent persons, dwelling next about the lands so entered, to inquire of such entries; whereof every man shall have lands or tenements of 40s. a year above reprises. And the sheriff shall return issues on every of them, at the day of the first precept returnable 20s., and at the second day 40s., and at the third day 100s., and at every day after double. And the sheriff making default shall, on conviction before the same justice or before the judge of assize, forfeit 201.; half to the King, and half to him who shall sue, with costs; and moreover shall make fine and ransom to the King. (a) In the course of the judgment in R. v. Wilson, (5 Nev. & M. 164; 3 Ad. & Ell. 817, S. C.), this case was adverted to, and from the production of the original warrants of commitment in that case it appeared doubtful whether the defendant was imprisoned upon the summary conviction or for want of bail on an indictment for riot and assault. |