1832. The KING V. OAKLEY. 15 R. 2, c. 2. 8 H. 6, c. 9. The justices have proceeded on the statute of 15 Rich.2, c. 2, but that statute only relates to a forcible detention of land after a forcible entry, and in this conviction it is not stated that there had been such a forcible entry by the defendants. Nor can the conviction be supported upon the statute of 8 Hen. 6, c. 9. In the first place, First point the magistrates cannot proceed upon their own view by gistrates may virtue of that statute; for that statute directs the justices proceed upon to make a precept to the sheriff, and to require him to Second return a jury, and the jury are to inquire of the entry; pointand in the second place, this statute applies only to a Whether statute applies to forcible detainer after an unlawful entry. Whether ma their own view. forcible de tainer after lawful entry. 5 R. 2, c. 7. Lloyd, contrà. At common law a man who attempted to regain possession of his own land by force, was guilty of a misdemeanor (a). Forcible entries upon lands and tenements, and forcible detainers, have been made offences by several statutes. The statutes are, 5 Rich. 2, c. 7; 15 Rich. 2, c. 2; 8 Hen. 6, c.9; 31 Eliz. c. 11; and 21 Jac. 1, c. 15. The statute of 5 Rich. 2 enacts, that none thenceforth make entry into any lands or tenements, but in cases where entry is given by law; and in that case, not with strong hand nor with multitude of people, but only in a peaceable and easy manner. This statute provided merely for forcible entries, and left the party peaceably ejected to the course of proceeding at common law, by indictment or by real action. The 15 R. 2, c. 2. statute of 15 Rich. 2 gave a more summary mode of proceeding in case of forcible entries. It enacted, that the previous statute should be enforced, and added, that "at all times that such forcible entries be made, and complaint thereof come to the justices of the peace or to any of them, the same justices or justice take suffi Posse comitatûs. (a) Rex v. Storr, 3 Burr. 1698; King v. Wilson, 8 T. R. 357. 1832. The KING บ. OAKLEY. cient 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 made, they shall be taken and put into the next gaol, there to abide convict by the record of the same justices or justice, until they have made fine and ransom to the king; and that all the people of the county, as well the sheriff as others, shall be attendant upon the same justices to go and assist the same justices to arrest such offenders; upon pain of imprisonment, and to make fine to the king." Neither of the statutes of Richard gave any redress where the entry had happened to be peaceable and the land was detained by force, nor where (although the entry had been forcible) the parties had quitted the premises before the arrival of the magistrates. The statute of 8 Hen. 6 was, 8 H. 6 c. 9. therefore, passed; and that statute, after reciting that the statute of 15 Rich. 2 did not extend to entries into tenements in a peaceable manner, and after holden with force, declares that the former statutes shall be duly Sect. 1. executed, and "in addition thereto, that henceforth where any doth make any forcible entry into any lands, tenements, or other possessions, or hold them forcibly after complaint thereof made within the same county where such entry is made, to the justices of the peace, or to one of them, by the party grieved, the justice or justices so warned within a convenient time shall cause the said statute to be duly executed, and that at the costs of the party so grieved." The next section Sect. 2. of this act provides, that though such persons making such entries be present, or else departed before the coming of the justices, they shall have power to inquire by the people of the same county, as well of them that make such forcible entries on lands, as of them which hold the same by force. And the justices shall reseise the lands or tenements so entered or holden as afore 1832. The KING v. OAKLEY, Sect. 3. 31 El. c. 11. said, and shall put the party so put out in full possession of the same lands or tenements so entered or holden as aforesaid. The next section regulates the mode of summoning the jury, and the last section declares that none shall be endamaged by force of the statute who have continued in possession for three years. The act of 31 Eliz. merely explained and enforced this last proviso of the statute of Hen. 6. Upon the construction of these statutes, it was holden, that if a copyholder be ousted, and the lord disseised, and such ouster and disseisin be found in an indictment for a forcible entry, the Court might award a restitution of possession. But it was a question whether restitution could be made to a copyholder where he had been ousted by his lord; as the words in the statute are, that the justices shall reseise the land. To remove this 21 Jac. 1, c. 15. doubt, the statute of Jac. 1 was passed, which enacted, that the justices should have power and authority to give restitution of possession unto tenants for terms for years, and tenants by copy of court-roll, of land by them so holden, which should be entered upon by force, or holden from them by force (a). The statute of Hen. 6, construed with 15 Rich. 2, which it recites, gave two modes of proceeding. The justices might either proceed summarily upon their own view, or they might summon a jury to inquire into the offence. In this case they have adopted the former course. [Patte son, J. It must be assumed that the entry in this case was lawful.] The precedents for a forcible detainer are in this form (b). [Denman, C. J. Suppose that the copyholder had let the land for a year, and that the lessee had entered and held possession by force, might (a) Dalton's Justice, cap. 44, 125, 126; Hawkins's Pleas of the Crown, 8th ed. 495-499. (b) Dalton's Just. c. 182; 2 Ld. Raym. 1514; 2 Burn's Justice, 803 (26th ed.) not every word of the conviction be true?] The parties convicted might have traversed the entry, and the justices might then have summoned a jury (a). A forcible detainer necessarily implies a previous unlawful expulsion. [Parke, J. There should have been averments in the conviction to bring the case within the purview of the statute; it is not stated that the house at the time of the entry was the property of Penfold.] The words in the conviction are, the mansion-house of him the said Penfold. This would be a sufficient averment of possession in a declaration; and the words in the precedent, in Lord Raym. are, "domum mansionalem ipsius E.” (b) [Taunton, J. It is not averred that the entry was unlawful.] If a tenant for years held over, he would be guilty of a forcible detainer. The statute of Hen. 6 applies to cases where the original entry is lawful, but the party holds the premises with force after his title has expired. That statute makes the unlawful and forcible detention of land an offence. Adolphus in reply. The statute 8 Hen. 6 only applies to a forcible detainer after a forcible entry. The statutes of Hen. 6, Eliz., and Jac. 1, all point at the summoning of a jury; they enact, that restitution shall follow the verdict; and they all proceed on the supposition, that an indictment will be preferred. Here it is not stated that the entry was forcible or unlawful. These statutes are highly penal; and the Court will not, therefore, supply by intendment the want of an averment of force or of unlawfulness. DENMAN, C. J.-This conviction cannot be sustained. The magistrates have a power of punishing a (a) Layton's case, 1 Salkeld, 353. (b) 2 Ld. Raym. 1514; 3 Ld. Raym. 360. 1832. The KING V. OAKLEY. 1832. The KING บ. OAKLEY. forcible detainer of lands which have been peaceably entered upon; but the detainer must be shewn to be unlawful. There is no averment in this conviction that the entry was unlawful; nor is there anything appearing upon the face of it which shews that the entry was not both peaceable and lawful. The question then is, whether a person who forcibly maintains his own possession is guilty of such an act as to entitle the justices to impose a fine. This conviction should have contained an averment of such facts as would have made the detainer appear unlawful. It is not sufficient to assert that the detainer was unlawful. The Court ought to see, from the facts averred in the conviction, that the detainer was unlawful. The party could not have taken a proper traverse upon the information stated in the conviction; he could only have traversed the word "unlawfully." PARKE, J.-The question has been reduced to two points; whether a party can be fined for a forcible detainer, upon the view of the justices; and whether there should have been an allegation that the entry by the defendant was unlawful. This question arises on 8 Hen. 6, c. 9. I think it is clear that the justices may act summarily under that statute. Where a complaint is made to the justice, the party charged has an opportunity of traversing it: Regina v. Leighton (a). If the party do not traverse the complaint, the justices may either proceed upon their own view, or, instead of deciding the question, receive the complaint as an indictment. The mode of procedure pointed out by the statute may be inconvenient, but it imposes no hardship on the defendant. If he do not chuse to traverse the information, it must be taken as admitted. I think that the objection as to the allegation of the possession (a) 1 Salk. 353. |