A single justice may execute this summary jurisdiction (y). In cities, towns, and boroughs having franchise, the mayors, justices, sheriffs and bailiffs have like power as justices elsewhere to remove forcible entries, etc.; so, too, has the lord mayor of London (z). Restitution of possession can be granted either where Restitution. proceedings have been taken by indictment under the statutes, or where summary proceedings have been taken before justices; but not after an indictment at common law. ment found. In the case of an indictment at the assizes or quarter After indictsessions, if the grand jury find a true bill the court may, before conviction, upon the application of the prosecutor, award restitution, the finding of a true bill being necessary to give the court jurisdiction to award restitution. It is entirely in the discretion of the court to grant or refuse a writ of restitution at this stage; and they may sometimes require the case to be made out by affidavit (a). The Queen's Bench will not review their decision (a). The defendant can show by affidavit when the writ is prayed for that the prosecutor's interest has ceased; or can, if the writ be granted, apply to have it quashed; or, on giving indemnity to the sheriff, can get him to return upon the writ any special matter, in which case the prosecutor can either object to the return for insufficiency in law, or bring an action for a false return if the return is inaccurate in fact (b); or can allege for a stay of restitution that he has had occupation or quiet possession for three years together next before the day of such indict N. S. 24; Ex parte Fulder, 8 (y) Hawk. P. C., I. c. 64, s. 8. (z) R. v. Layton, 1 Salk. 353; 15 Rich. 2, c. 2; 8 Hen. 6, c. 9, s. 6. (a) Bac. Abr., Forcible Entry (F); R. v. Dillon, 2 Chit. 314; R. v. Harland, 8 A. & E. 826; R. v. Hake, 4 M. & R. 483; Com. Dig., Forcible Entry (D 5). (b) R. v. Dillon, 2 Chit. 314. To whom restitution may be awarded. Against whom. Restitution ment so found, and that his estate therein is not ended or determined. If the prosecutor traverse this last allegation the question must be tried, and if it be found against the defendant, the defendant must pay to the prosecutor such costs and damages as shall be assessed by the judges or justices before whom the same is tried, which can be recovered and levied in the same way as costs and damages in judgments upon other actions are recovered (c). Restitution upon indictment found may be awarded to freeholders, or to tenants for terms of years, tenants by copyhold, by elegit, and others (d). An award of restitution will only be made where the person who forcibly entered or detained had actually ousted the prosecutor, and is himself in possession at the time the indictment is found (e). If a person who has a right to enter, enter by force, he may be indicted, notwithstanding his right, and restitution may be awarded (ƒ). Justices cannot upon their own view of the force award after summary restitution without an inquisition and verdict of a jury (g). proceedings. The proper course to pursue is as follows: Where complaint is made to justices of a forcible entry and detainer, or of an unlawful entry and forcible detainer, the justice may, if necessary, remove the force and convict the offender (h); he should then issue a præcept directed to the sheriff of the county to summon and return a jury to inquire into the matter (i). A time and place for the hearing must be fixed, and notice given to the defendant and the other parties to appear before him (k). The complainant must prove a forcible entry and detainer (c) 31 Eliz. c. 11. (d) 21 Jac. 1, c. 15; App. B, p. 294. (e) Anon., 3 Salk. 169. (f) Dalton, c. 182. (g) Hawk. P. C., I. c. 64, s. 50. (h) Ante, p. 20. (i) 8 Hen. 6, c. 9, ss. 3, 4. (k) Hawk. P. C., I. c. 64, s. 60; Bac. Abr., Forcible Entry (G). or an unlawful entry and forcible detainer (l). The defendant can deny the force, or plead that his entry was peaceable and lawful (m), or that he or his ancestor has been in possession for three whole years together of a lawful estate (n), and that his estate therein is not ended or determined (o). The issues must then be tried by a jury and no award of restitution can be made until they have been tried (p). If the jury find in favour of the complainant, an inquisition should be drawn up and signed by each of them and by the justice, which must be kept by the justice unless the inquiry is moved by certiorari into the Queen's Bench Division. Upon the inquisition being found in favour of the complainant the justice is bound to grant restitution (q), and will at once put the complainant into possession, peaceably if possible, and make an indorsement on the inquisition of such possession having been delivered. The inquisition must set out the estate possessed by the complainant in the property in dispute (r). If possession cannot be obtained peaceably, a warrant should be directed to the sheriff to put the complainant in possession (s). The justice in all cases must indorse on the inquisition a memorandum of the writ of possession being granted and what has been done under it. The justices, or any one of those who have awarded Supersedeas restitution, may themselves supersede the præcept for of restitution. restitution before it is executed, if the indictinent or in- By justices. quisition appear to them to be insufficient (t). The Queen's By Q. B. D. Re-restitution by Q. B. D. Bench has always power to remove an indictment or inquisition by certiorari, and to supersede the restitution (u), or, upon quashing an indictment or inquisition, to set aside a writ of restitution which has been executed (u). A writ of restitution will be superseded and re-restitution granted when it appears that the justices have been irregular in their proceedings, as by refusing to try a traverse of the force tendered by the defendant (x), or if the defendant does traverse the force and gets a verdict (y). In the case of an indictment, a traverse of the force is an absolute supersedeas (z). An inquisition as to the force used, which was to give effect to a conviction, will be quashed if the conviction is void (a), it will also be quashed if it does not appear what estate the party had on whom entry was made (b). Where the Queen's Bench has set aside a writ of restitution after it has been executed it will always award to the defendant re-restitution (c), even when the indictment or conviction or inquisition on which the restitution was granted is quashed (d), and that, too, without going into the merits (e). The following are the statutes relating to the subject of forcible entry and forcible detainer (ƒ): 5 Rich. 2, c. 8; 15 Rich. 2, c. 2; 4 Hen. 4, c. 8; 8 Hen. 6, c. 9; 31 Eliz. c. 11; 21 Jac. 1, c. 15. CHAPTER V. BY LANDLORD AGAINST TENANT. lord must prove. WHEN a landlord brings an action to recover posses- What landsion of demised premises, he need not prove his title to the premises. It is sufficient for him to prove a tenancy, and its termination, and that the defendant is in possession under that tenancy. If the plaintiff himself did not let the defendant into possession, or actually demise to him, he must also show that the reversion is vested in him. The only other matter necessary to be proved, is that the premises sought to be recovered were included in the demise. A tenancy, according to its nature, may expire, or be Termination determined by efflux of time, notice to quit, demand of of tenancy. possession, determination of will, forfeiture, disclaimer, or surrender. A landlord may proceed under the practice established Procedure. by the Judicature Acts, and the rules of the Supreme Court, or under the Common Law Procedure Act, if appli cable to his case. tenancy. The fact that the defendant is a tenant can be shown Proof of by proof of a lease by deed or writing, or of an oral demise; that the defendant was let into possession by the plaintiff or his predecessors, and not under a conveyance of the freehold (a); by payment and receipt of rent; by an acknowledgment of title as landlord; or by admissions of (a) Doe v. Wiggins, 4 Q. B. 367. |