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peaceably, nor if the parties are gone before the justice comes to the place.

The second way is for the justice upon complaint made to him of any such entry or detainer, to make out his warrant to the sheriff, commanding him to summon and bring before him a sufficient number of freeholders dwelling in the neigh bourhood of the lands so entered, usually twenty-four, and upon twelve appearing, to swear them to enquire of such for- ! cible entry or detainer; and upon their finding force, to cause the lands to be re-seized, and to put the party disseized into possession, without enquiring into the title of either party. This may be done as well in the absence as in the presence of the offender, after calling to answer for himself.

But if after the jury have found a forcible entry, or a forcible detainer, the defendant tender a plea in writing, denying the force, or setting forth that he has been three years in possession next before the day of the inquisition found, the justice cannot make restitution till that plea be tried.

If such a plea be tendered, the justice may proceed in one of these two ways, namely, he may either stop there and certify the inquisition and all the proceedings, into the superior court, after binding over the witnesses to appear there; or he may issue his precept to the sheriff, commanding him to summon a jury as before, to try the issue, and to bring them be fore him; and after they appear, to swear twelve of them to that issue, and if they find the force stated in the inquisition, then to cause restitution to be made either in person or by the sheriff, having his warrant for that purpose. All which may be done the next day, or any day after the inquisition found, and shall be at the expense of him who tenders the plea. Such restitution is made by putting out all such offenders who shall be in the house or upon the lands.

The force necessary to make an entry or detainer forcible, must not be an implied one, but must be attended with some circumstance of actual violence or terror, as by beating the person in possession, or breaking open the doors of a house, not the bare drawing of a latch, or pulling back the bolt of a door, or opening it with a key, or going in at a window, if not done with strong hand, or multitude of people; or it may be a threatening behaviour or speech, at the time of entry, giving those in possession just cause to fear the doing of some bodily hurt, or by carrrying with him an unusual number of attendants, or arming himself in a manner which intimates a design of force, or by threatening to kill, maim, or

.

beat, or giving out speeches implying such a design as that he will keep the possession in spite of every body, or the like. But it seems that no entry shall be judged forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any other such like damage, which is not personal. 1 Haw. 146.

However it is clear, that it may be committed by a single - person, as well as by twenty.1 Haw. 146.

But nevertherless all those who accompany a man, when he makes a forcible entry, shall be judged to enter with him, whether they actually come upon the lands or not.-1 Haw. 144.

It seemeth certain, that the same circumstances of violence or terror which will make an entry forcible, will make a detainer forcible also. And a detainer may be forcible, whether the entry were forcible or not.-1 Haw. 146.

If a man's wife, children, or servants do continue in the house or upon the land, he is not ousted of his possession; but his cattle being upon the ground, do not preserve his pos

session.-Dalt. c. 132.

If a forcible entry or detainer shall be made by three or more persons, it is also a riot and may be proceded against as such.-2 Cro. 151.

Form of the Record of a Forcible Entry and Detainer

on View of the Justices.

State of North-Carolina, Wake County.

Be it remembered, that on the

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day of

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in the year of our in the county aforesaid, A B complained to us,

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BC, CD, and D E, justices of the peace for the county aforesaid, that
EF and FG, late of into the messuage of him the said A B, be-
ing the mansion house of him the said A B, called [if it has a particular
name]
situate within the county aforesaid, did enter, and him
the said A B of the messuage aforesaid, whereof the said A B at the time
of the entry aforesaid, was seized as of the freehold of him the said A B
for the term of his life, unlawfully ejected, expelled, and amoved, and
the said messuage from him the said A B unlawfully, with strong hand
and armed power, do yet hold, and from him detain, against the form of
the statute in such case made and provided. Whereupon the said A B,
then, to wit, on the said
, in the county afore-
said, prayeth of us, so as aforesaid being justices, to him in this behalf,
that a due remedy be provided, according to the form of the statute
aforesaid. Which complaint and prayer by us the aforesaid justices
being heard, we the aforsesaid BC, C D, and DE, justices aforesaid,
to the messuage aforesaid personally have come, and do then and there
find and see the aforesaid EF and F G the aforesaid messuage, with
force and armis, nnlawfuily, with strong hand and armed power, detain-
ing against the form of the statute in such case made and provided, ac-
Gording as he the said A B so as is aforesaid hath unto us complained.
Therefore it is considered by us the aforesaid justices, that the aforesaid

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EF and F G of the detaining aforesaid with strong hand, by our own proper view then and there as is aforesaid had, are convicted, and every of them is convicted, according to the form of the statute aforesaid.-Whereupon we the Justices aforesaid, upon every of the aforesaid E F and FG do set and impose severally a fine of good and lawful money of North-Carolina, to be paid by them and every of them severally to the Governor, for the said offences; and do cause them, and every of them, then and there to be arrested. And the said E F and F G being convicted, and every of them being convicted upon our proper view, of the detaining aforesaid, with strong hand as is aforesaid, by us the aforesaid justices are committed, and every of them is committed to the common jail of the county aforesaid, being the next jail to the messuage aforesaid, there to abide respectively, until they have paid their several fines respectively, to the said governor for their respective offences aforesaid. Concerning which the premises aforesaid, we do make this our record. In witness whereof, we the aforesaid B C, C D, and D E, esquires, the justices aforesaid, to this record our hands and seals do set, at aforesaid, in the county aforesaid, on the year of our Lord

day of

Mittimus for Forcible Detainer.

State of North-Carolina, Wake County.

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in the

B. C......(seal.)
C. D......(seal.)

D. E..

.(seal.)

A B, Esq. one of the Justices of the Peace for the said County, to the Keeper of the Common Jail, at

greeting.

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in the County aforesaid,

aforesaid, in the county labourer, B O, of

Whereas upon complaint made unto me this present day, B C. of in the county aforesaid, planter, I went immediately to the dwelling-house of him the said B C, at aforesaid, and there found A O, late of weaver, and C O, late of butcher, forcibly with strong hand and armed power, holding the said house, against the peace of the state, and against the form of the statute in such case made and provided. There fore I send you by the bringers hereof, the bodies of the said A O, B 0, and C O, convicted of the said forcible holding, by my own view, testimony and record, commanding you to receive them into your said jail, and there safely to keep them, and every of them respectively, untill they shall have respectively paid the several sums of pounds, of good and lawful money of North-Carolina, to the governor of the state, which I have set and imposed upon every of them separately, for a fine and ransom for their said trespasses respectively. Herein fail not, at the peril that may follow thereof. Given at seal, the

aforesaid, in the county aforesaid, under my hand and in the year of our Lord

day of

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A. B......(seal.)

Precept to the Sheriff to return a Jury.

State of North-Carolina, Wake County.

A B, Esq. one of the Justices of the Peace for the County aforesaid, to the Sheriff of the said county, greeting.

I command you, that you cause to come before me at , in the county aforesaid, on the day of next ensuing, twenty-four sufficient and indifferent men, of the neighborhood of aforesaid, in the county aforesaid, being freeholders, to enquire upon their oaths, of a certain entry made with strong hand (as it is said) in the messuage of one A I, at aforesaid, in the county aforesaid, against the form of the statute in such case made and provided. And you are to return upon every of the jurors by you in this behalf to be impannelled, twenty shillings of issues at the aforesaid day. And have you then and there this precept. And this you shall in no wise omit, upon the peril that shall thereof ensue.

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You shall true inquiry and presentment make of all such things as shall come before you, concerning a forcible entry [or detainer] said to have been lately committed in the dwelling-house of planter, at

in this county. You shall spare no one for favour or affection nor grieve any one for hatred or ill will; but proceed herein according to the best of your knowledge, and according to the evidence that shall be given to you, So help you God.

THE OTHER JURORS.

The oath that A F your foreman hath taken on his part, you and every of you shall truly observe, and keep on your parts. So help you

God.

The Inquisition or Finding of the Jury.

State of North-Carolina, Wake County.

An inquisition for the state, indented and taken at county, the day of

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in the year of our Lord

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in the said

by the oaths

of C D, E F, &c. good and lawful men of the said county, before A B, esquire, one of the justices of the peace for the county aforesaid, who say upon their oaths aforesaid, that A I of aforesaid, planter, long since lawfully and peaceably was seised in his demesne as of fee [if not freehold, then say, possessed] of and in one messuage, with the appurtenances, in aforesaid, in the county aforesaid, and his said possession [and seisin] so continued until A O late of planter, B O late of the same, planter, and CO late of the same, planter, and other malefactors unknown, the day of now last past, with strong hand and armed power, into the messuage aforesaid, with the appurtenances aforesaid, did enter, and him the said A I thereof disseised, and with strong

of

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hand expelled; and him the said "A I so disseised and expelled from the said messuage with the appurtenances aforesaid, from the said day until the taking of this inquisition, with like strong hand and armed power did keep out, and do yet keep out, to the great disturbance of the peace of the state, and against the form of the statute in that case made and provided.

In testimony whereof as well the said justice as the inquest above named to this inquisition have interchangeably set their hands and seals the day and year above written.

at

(Seal.) A. B.

C. D......(seal.)
E. F..
(seal.)

&c:

Warrant to the Sheriff for Restitution.

State of North-Carolina, Wake County.

&c.

A B, Esquire, one of the Justices of the Peace for the said County,

to the Sheriff of the said county, greeting.

Whereas, by an inquisition taken before me the justice aforesaid,

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in the county aforesaid, on this present

day of

, in

the year of our Lord , upon the oaths of C D, E F, &c. and by virtue of the statutes made and provided in cases of forcible entry and detainer, it is found that A O late of , planter, and B O late of , planter; on the day of now last past, into a certain messuage, with the appurtenances, of A I of aforesaid, in the county aforesaid, planter, situate, lying, and being at aforesaid, in the county aforesaid, with force and arms did enter, and him the said A I thereof then with strong hand did disseize and drive out, and him the said A I thus driven out from the aforesaid messuage with the appurtenances, from the day of aforesaid to this present day of taking the inquisition, with strong hand and armed force did keep out, and do yet keep out, as by the inqui sition aforesaid more fully appeareth of record. Therefore on behalf of the state, I charge and command you, that taking with you the power of the county (if it be needful) you go to the said messuage and other the premises, and the same with the appurtenances you cause to be reseized, and that you cause the said A I to be restored and put into his full possession thereof, according as he, before the entry aforesaid was seized, according to the form of the said statutes. And this you shall in no wise omit, on the penalty therein incumbent. Given under my hand and seal the Lord

day of

in the year of our

A. B......(seal.)

Oath to a Jury on a Traverse.

You shall well and truly try this issue of traverse, between the state and C D, E F, &c. for a forcible entry and detainer, wherewith they stand charged, and a true verdict give according to your evidence. So help you God.

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