APRIL TERM, 1772.

#### Lord Proprietary *against*Morgan Brown and others.

MOTION was made to quash an inquisition of forcible entry and detainer, returned by certiorari.

It was objected, 1st. That the *venire*does not direct the sheriff to summon indifferent persons, dwelling in the neighbourhood.

2d. That the sheriff returns seventeen Jurors, and it does not appear on the face of the return, that they were freeholders, nor that they were men of the county.

3d. That there is a variance between the oath and the inquisition. The oath was to inquire *of a forcible entry made in the*dwelling-house. The inquisition finds an *entry and detainer of a messuage.*

4th. That the denial of the plea of three years posses* sion in bar of restitution, being awarded, which was ten- . dered the next day after the conviction, renders the proceedings vicious.

5th. That no notice was given to two of the parties interested in the cause, who by the inquisition appeared to be out of the country.

*Holly day,*for quashing the inquisition.

The Court will quash an inquisition for uncertainty, as if the indictment be for an entry into a *messuage*or *tenement.*2 *Ro. Abr.*80. pi. 4. 1 *Stra.*474. So an indictment for forcible entry and detainer was quashed, because it said, *disseised,*and it did not appear that he had a freehold. *Raym.*67. *Cro. fac.*214. The Court will imply nothing to aid any defect or imperfection, in the proceed* ings on forcible entry and detainer.

*429The first objection is to the warrant to summon the Jury. It is a-principle at common law, that facts shall be tried by the vicinity. *Co. Litt.*124, 125. The statute of 8 *H.*VI. c. 9. requires the Justice or Justices, to issue a warrant, directed to the sheriff of the *same*county, *com■mandinghim*to cause to come before the Justice, sufficient and indifferent persons, dwelling *next about*the lands entered upon. By the precedents in *Bunt’s*Justice, 189. the warrant must direct the sheriff to summon persons of the neighbourhood. Here the warrant do-.-s not specify and point out the qualifications required by the statute.

The second objection is, that it docs not appear on the face of the return, that the Jury are composed of persons qualified by the statute to fill the office.

The third objection is, the variance between the oath and the inquisition returned. The inquisition is broader than the oath, and so far as the inquisition exceeds the oath, it is ineffectual, being *ex officio,*they not being sworn *to*try the matter, A messuage is something more than a .dwelling-house.

As to the fourth objection, the statute 31 *Eliz.*c. 11. makes three years possession a bar to restitution, and gives the defendant a right of possession, Under this statute, the defendant may plead three years possession in bar of restitution, after conviction of the forcible entry, and before restitution awarded; therefore a refusal of the plea in bar of restitution renders the proceedings vicious. Courts have always held a strict hand over the proceedings on writs of forcible entry and detainer.

*Hall,*on the same side.

The fifth objection is, that no notice was given to • the. parties interested. The Justice cannot award restitution, before the defendant has had notice to defend himself, 1 *Haw.*154. 2 *Bac. Abr,*564. *Sav.*68. pi. 241. Notice is necessary before an award of restitution, because if it is not given, the defendant may be deprived of his right ©f *430pleading *three years*possession, whereby he acquires *it*right of possession, and precludes any award of restitution. This further inconvenience might possibly result from notjce being adjudged unnecessary; the party prosecuting might, by collusion and mal practice, procure some friend to suffer himself to be joined with the party interested in such proceedings, and thereby defeat the defendant of his right.

The statute does not require twenty-four Jurors, but the proceedings are so, and the precept in this case requires the sheriff to summon twenty-four persons, but the sheriff returns only seventeen. The statute, allowing the party to plead that he and his ancestors have been in peaceable possession for three years, except as to the restraint to three years, is in affirmance of the common law, for by the common law a man might defend his house by force and arms, it being his castle, 11 *3Iod,*47.

Earle, against the motion,

The statute was made to quiet possession, and to give & person, wrongfully *ousted*of his possession, a full and speedy remedy to reinstate himself. It being then a remedial law, it is to have a liberal construction. 1 *Sid.*101. *Malt. 201.*214. *5- 31od.*443. Restitution ought to follow the conviction immediately. *Garth.*496. 12 *3iod.*26. An exception was taken to an inquisition, because the words *then and there*were omitted, but was not allowed, 4 *Mod.*248. In 6 *3iod.*95, exception was taken to an inquisition of forcible entry, because it did not appear what the Jury were sworn to do, whether they were an inquest of inquiry, or a petit Jury, and the inquisition was confirmed notwithstanding the objection. And in 7 *Blod.*115. though an indictment of forcible entry and detainer was faulty, the Court supported it, because there were too many in that way to quash them all. There is no case to be found, where an inquisition was quashed, for any fault which did not appear on the inquisition itself, and not for any thing *431precedent to it. The *certiorari*returns nothing but the inquisition. The sheriff has returned, that he summoned good and lawful men. If they are not qualified agreeably to the statute, they may,.be challenged before they are sworn, and any objection to the qualification of Jurors, after restitution has been awarded, comes too late. 2 *Burn. 179. Dalt.*209. And although the Jurors be not freeholders, their presentment shall be good, and advantage can only be taken of it, by plea before restitution. *Dalt. 312. c. 150.*If the defendant tenders one plea, and afterwards offers a second, the Court may award restitution. *Dalt.*216. The statute says, *after complaint made*of a forcible entry and detainer, the Justice shall go to the place, *ozc.*yet ihece words do not enforce any necessity of such complaint, for the Justice may, and ought to proceed, upon any information or knowledge whatsoever, though no complaint be brought by any party grieved. 2 Burn« 179. or 1 *Burn. 411. c. S.*s. *3.*tit. *forcible entry and detainer.*Every thing certified antecedent to the taking of the inquisition, is surplusage, and ought to be rejected* It follows too, that if Jurors are sworn to try a forcible entry, they have an incidental right to find a detainer. The statute says, Jurors *next about the place;*the precedents say, Jurors of *the neighbourhood;*suppose the fact was committed at the extremities of the county ? If the defendant once pleads not guilty, he cannot afterwards tender a plea of three years possession. He ought to confess and avoid. *Dalt.*216. If the defendant traverses and discontinues, he shall not plead three years possession.

fohnson, against the motion.

The several amendments made to the statute, shew the legislature of *England*was solicitous of perfecting the pro - visions of the statute, and repressing the mischief which it was intended to remedy; .the Court will therefore give to the statute a favourable construction. Every thing returned on the *certiorari*besides the inquisition, is surplusage, *432f°r the *certiorari*commands the Justice to retun. all judgments, presentments and *inquisitions.*

'h'he word neighbourhood is an indefinite term, and the words *next*about, ought to be construed to mean *of the county.*The words *good and lawful*men, in a venire, mean freeholders, and of the county, or such men as are enabled to perform the office they are summoned about, and therefore must have the qualifications specified in the statute. 'The warrant is to return men of the county ; the sheriff returns seventeen Jurors, and designates them by their ñames. As to the objection that there is a variance between the inquisition and the oath, taken before the magistrate; nothing can be intended by the Court, to destroy the proceedings off the inferior jurisdiction; but on the contrary, the Court will make an intendment in favour of upholding them. As to the objection that the plea ought to have been received, the plea ought to have been pleaded in due time and course of lawand when a plea is once pleaded, it cannot be retracted without consent. Here the defendant first pleads one thing, and then after conviction offers to plead another. He confesses the charge in the information, is fined, and gives a recognisance, and the magistrate having once fined, and taken a recognisance, he could not strike it out and receive a traverse ; so the magistrate cannot strike out a fine and suppress a recognisance. As to the objection for the want of notice, if conjectures are indulged, it may as well be presumed, that the person fined could give notice as well to one person interested, as to another to defend him. There- is no precise time within which notice shall be given ; and no person but the defendant himself can say that he had no notice. If he had no notice let him make an affidavit of it. Why is notice necessary? The statute does not require it; actual notice is not necessary; a reasonable opportunity to be informed is sufficient.

*The Court*quashed the inquisition as to the detainer, and affirmed it as to the forcible entry, and fined the de-fendant.

*433
      *Motion*was then made for restitution.

*Holly day,*against restitution.

There cannot be restitution, unless the detainer is found to continue up to the time of the inquisition. 1 Hawk. 150. s. 41. *Dalt.*c. 81. s. 3. The inquisition being quashed as to the detainer, it remains only an inquisition as to the forcible entry. 1 *Hawk.*155. s. 65, 66. In Strange, 474. the Court say they have no discretionary power, but are bound to award restitution on the quashing of the con-faction.

*Earle,*for the motion.

By the words of the statute of 8 *H.*VI. c. 9. one is entitled to restitution on forcible entry only. In *Carth.*496. restitution was awarded three years after conviction, on a forcible entry only. *Vin. Abr.*tit. *forcible entry,*388. pi. 12. and also cites 1 *Vent.*23. *Dalt.*c. 81. p. 210, 211. *Salk.*260. Restitution is only by an equitable construction of the general words of the statute, and is a power never made use of, but when, upon a consideration of the whole of the circumstances of the case, the defendant shall appear to have some right to the tenements, the possession-whereof he lost by the restitution to the prosecutor. 1 *Hawk.*155. s. 65,66. Rerestitution is *ex gratia. T. Raym.*84, 85. 1 Raym. 483. 2 *Keb.*306. 471. *Cro. Jac.*151. The case in *Strange*is on the application of the person who committed the force, and it does not appear that restitution had been awarded below. 2 Burn. 184. *Gomyn'c, Dig- Force.*

*434
      *Johnson,*in reply,

Said, that it appears on the proceedings, that the prosecutor was seised in fee-simple, and continued so up to the t:me wpen the force was committed. That the statute is in the disjunctive. If taken in the copulative it must referió both cases; and yet, if there is a forcible detainer, though the entry was peaceable, the cases say it is against the statute.

*Restitution*was awarded by the unanimous opinion of the Court.