declares and enacts," that no restitution upon any indictment of forcible entry or holding with force be made to any person if the person so indicted hath had the occupation or been in quiet possession for the space of three whole years together next before the day of such indictment so found, and his estate therein not ended; which the party indicted may allege for stay of restitution, and restitution to stay till that be tried if the other will [1122] deny or traverse the same." And by the 21 Jac 1. c 25. it is provided that such judges, justices or justice of the peace as by reason of act or acts of parliament then in force were authorized and enabled upon enquiry to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon by force, or from them withholden by force, shall by reason of that act have the like and the same authority and ability from thenceforth (upon indictment of such forcible entries or forcibly withholding before them duly found) to give like restitution of possession unto tenants for term of years, tenants by copy of court-roll, guardians by knight's service, tenants by elegit, statute merchant, and staple of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force." The restitution of the land, is, therefore, the principal reason for indicting. Indictment. In an indictment for a forcible entry the place Indictmust be described in terms sufficiently certain. And, there- ment. fore, if it merely charges that the defendant forcibly entered a certain tenement, which may signify any thing which may be held and even an incorporeal hereditament, it will be defective. 1 Sess. Cas. 357. 1 East 441. 2 Stra. 891. So, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or certain lands belonging to a house, is bad, for the same certainty is required as in a declaration in ejectment. Hawk. b. 1. c. 64. s. 37. The indictment must also show what party had the possession of the premises. 1 Sess Cas. 359, and on the 8 Hen. VI. must state that the place was the freehold of the party grieved; but it seems to be sufficient on the statutes of Richard the Second to show who had the possession. Hawk. b. 1. c. 64, s. 38. On the 8 Hen. VI. the allegation must be express, that the place was the freehold of the party grieved, at the time the injury arose. id. ibid. And as under this act it must be shown that the party aggrieved was seised of a freehold, in order to bring the case within it, so under 21 Jac. 1. c. 15. the indictment must allege 8 T. such an estate in him as that statute requires; and, therefore, to set forth, in general, that he was possessed, or possessed for a certain term, without adding that it was for years, is not good, for, in the first case, it may be supposed that he is merely a tenant at will, and, in the second, that he is possessed of a term for life, in neither of which cases will the statute of James apply. Hawk. b. 1. c. 64. s. 38. But an indictment at common law, stating that the prosecutor was possessed will suffice. 8 T. R. 360. The indictment need not state the offence to have been committed both [*1123] manu forti and vi et armis, but the former will suffice, as it includes the latter. Cro. Eliz. 461. It is the words "with a strong hand" that distinguish the indictable offence from the civil trespass. At least a public breach of the peace must appear. R. 361, 2. If the word "disseised” is inserted, it is not also necessary to use the terms expelled or unlawfully, for the last is superfluous, and the first is implied in the word disseised, but unless the word disseised be used, the indictment at common law should contain the word "expelled," 8 T. R. 357. Cro. Jac. 32. It appears also to be sufficient to allege that the defendant on such a day entered and disseised the prosecutor without adding the words then and there to the disseisin, Cro. Jac. 41, 151. An indictment for a forcible detainer is good without showing that the defendan'ts original entry was peaceful Cro. Jac. 19. But it seems clear that an entry must be shown as the act would not apply if the party had been always in possession. Hawk. b. 1. c. 64. s. 40. It seems to have been left doubtful whether an indictment, stating that the defendant entered and disseised without saying whether the entry was peaceable or violent, is good, Cro. Eliz. 915. though, on principle, it appears to be defective as charging no specific offence. And it is clear that repugnancy in stating the charge will vitiate; as if, in an indictment on 8 Hen. VI. setting forth that the defendants peaceably entered and then and there with force and arms disseised the prosecutor; or if it set forth a disseisin of land then and still being the freehold of the party grieved; for it appears that he always remained in possession, in which case there can have been no disseisin Alleyn. 50. 2 Roll. Rep. 311. It is said that a forcible detainer need not be laid as against the peace; but it is not usual to omit this allegation. Cro. Jac. 32, 151. Plea.-A person indicted of a forcible entry may delay the award Plea. of execution by traversing the force, or by plea of three years, possession. 1 Ld. Raym. 440. When the proceedings are removed into the kings bench by certiorari, the defendant must plead in stanter. Restitu Award of restitution.As to the award of restitution, see Hawk. Award of b. 1. c. 64. s. 45 to 66. If the defendant be unjustly put out of pos- tion. session the court of king's bench will make re-restitution of the lands, Cro. Jac. 151. Alleyn 50. *INDICTMENTS FOR FORCIBLE ENTRIES AND DETAINERS. peace of our [*1124] cible entry and de tainer at common law. (a) That A. B. late of. &c and C. D. late of, &c. together with di- For a forvers other evil disposed persons, and disturbers of the said lord the king, to the number of six and more, whose names to the jurors aforesaid are as yet unknown, on, &c. with force and arms, and with a strong hand, (b) unlawfully, violently, forcibly, and injuriously did enter into, &c. [state the premises according to the fact,] (c) then and there being in the peaceable possession of one E. F. (d) and situate and being in the parish aforesaid, in the county aforesaid; and that the said A. B. and C. D. together with the said other evil disposed persons, then and there with force and arms, and with a strong hand, unlawfully, violently, forcibly and injuriously did expel, amove, and put out the said E. F. from the possession of the said premises with the appurtenances, and the said E. F. so as aforesaid expelled, amoved, and put out from the possession of the same with force and arms, and with a strong hand, unlawfully, violently, forcibly, and injuriously have kept out from the day and year aforesaid, until the taking of this inquisition, and still do keep out, and other wrongs to the said E. F. then and (a) See similar precedents Starkie, 422. Cro. C. C. 199. 8 T. R. 357. (6) This allegation or some words equivalent to it, are essential, 8 T. R. 357. scription is requisite as in a decla- (d) It must be shown who was 359. Indictment at common law for forcible there did, to the great damage of the said E. F. and against the peace, &c. That C. P. late of, &c. T. C. late of, &c. together with divers other evil disposed persons, and disturbers of the peace of our said lord the king, to the number of ten and more, whose names entry and to the jurors aforesaid are as yet unknown, on, &c. with force and expulsion arms, and with a strong hand, at, &c. aforesaid, into one shop, one from possession.(e) warehouse, and one stable, being parcel of the dwelling house of L. H. widow, there situate, unlawfully, violently, forcibly, and injuriously did enter, the said shop, warehouse, and stable, then and there being in the peaceable possession of one R. F. and situate and being in the parish aforesaid, in the county aforesaid, and him the said R. F. from the possession of the same premises with force and arms, and with a strong hand, then and there unlawfully, [*1125] *violently, forcibly, and injuriously did expel, put out, and remove from the possession of the said premises, with the appurtenances, and him the said R. F. so as aforesaid expelled, put out, and removed from the possession of the said premises on the day and year above mentioned, and continually afterwards, until the day of taking this inquisition, with force and arms, and with a strong hand, at, &c. aforesaid, did unlawfully, violently, forcibly and injuriously keep out, and still do keep out, and other wrongs to the said R. F. then and there did, to the great damage of the said R. F. and against the peace of our said lord the king, his crown and dignity. on the sta For a for- Westmoreland. That A. I. late of, &c. on, &c. and before and cible enat the time of committing of the offence hereafter mentioned, try and detainer, was possessed of a certain messuage with the appurtenances, sitututes. (f) ate, lying, and being in, &c. aforesaid, for a certain term of years, then and still to come and unexpired, and being so possessed thereof, one A. O. late of, &c. afterwards, to wit, on the said, &c. into the same messuage, with the appurtenances aforesaid, in, &c. aforesaid, with force and arms, and with strong hand unlawfully did enter, and the said A. I. from the peaceable possession of the (e) See precedents Cro C. C. 362. 8 T. R. 357. 2 Starkie, 422. see general note ante 1120* to 1122.* (f) See similar precedents, Burn. J. Forcible Entry. 4 Wentw. 404. Cro. C. C. 200. Burn. J. Forcible Entry. Starkie, 425. and general note ante 1120* to 1122.* said messuage, with the appurtenances aforesaid, then and there with force and arms, and with strong hand unlawfully did expel and put out, and the said A. I. from the possession thereof so as aforesaid with force and arms, and with strong hand, being unlawfully expelled and put out, the said A. O. him the said A. I. from the aforesaid, &c. until the day of the taking this inquisition from the possession of the said messuage, with the appurtenances aforesaid, with force and arms, and with strong hand, unlawfully and injuriously then and there did keep out, and doth still keep out, to the great damage of the said A. I. against the peace, &c. and against the form of the statute in that case made and provided. For a forcible entry into a free hold, on st. 5. and That A. B. late of, &c. and C. D. late of, &c. together with divers other evil disposed persons, and disturbers of the peace of our said lord the king, whose names to the jurors aforesaid are as yet unknown, on, &c. with force and arms, and with a strong hand 15. R. 2. did enter into, &c. [here state the premises according to the fact,] (5) then and there being the freehold of E. F. and then being in the tenure and occupation of one G. H. and did then and there with force and arms, unlawfully with a strong hand, and without judg- [*1126] ment* recovered disseise the said E. F. and expel and eject the said G. H. from his possession of the same, and with force and arms unlawfully, and with a strong hand, from the day and year aforesaid, until the taking the inquisition, have kept out and still do keep out the said E. F. so disseised as aforesaid, and the said G. H. so ejected and expelled as aforesaid from the said premises, with the appurtenances, against the form of the statute, &c. and against the peace, &c. mon law ing a public house, making a Worcestershire. That A. B. late of, &c. being an evil disposed At comperson, and of a furious, quarrelsome, and turbulent disposition, for enteron, &c. that is to say, about the hour of eight in the night of the same day, with orce and arms, at, &c. aforesaid, unlawfully did enter into the dwelling house of one R. N. there situate, (the same being a public victualling house, and in which divers liege subjects and (g) See a similar precedent, Trem. P. C. 192. Starkie, 423. 6 Wentw. 403. Indictment for a forcible entry to the damage of a person seised of and in five undivided VOL. II. parts of a freehold, 4 Wentw. 150. for a forcible entry against twelve, 6 Wentw. 428. and see ge neral note ante 1120* to 1122.* 5 U noise therein, |