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EDGWORTH v. EDGWORTH [1766]

II BROWN.

agents, Edward Farrell continued to detain the house forcibly, on which the appellant applied to a neighbouring magistrate to have the force removed; who, upon full examination of the force and riotous assembly, issued a precept to the sheriff of the county of Kildare, to return an inquest at a short day, to inquire thereof, pursuant to the several statutes against forcible entries and detainers.^[1] But before the same could be [29] effected, a possessory bill was, on the 29th of August 1759, exhibited by the respondents in the Court of Chancery in Ireland, by the said John Magill, their guardian or next friend; charging, that the respondents were the children and devisees of Packington, that the respondent Moore Edgworth was his eldest son and heir at law, that Packington had, on the 20th of June 1759, six days before his death, made a will, and thereby devised the said manor and lands to the respondents, to be equally divided between them; and also charging, that the appellant had, on the 13th of July 1759, with several servants and others, armed in an hostile manner, entered upon and taken possession of the said manor forcibly, and put several horses on the demesne lands, and kept them there by force, and appointed a seneschal for the manor in the room of Tyrrell: that such seneschal held courts and granted replevins, contrary to the statutes against forcible entries and detainers; and therefore the bill prayed general relief, contrary to the usage on possessory bills, and an injunction against the appellant, to restore and quiet the respondents in the actual and peaceable possession of the said manor and lands.

On the 30th of August 1759, the day next after the bill was filed, an injunction was, upon petition to the Lord Chancellor, without ordering any attendance, granted against the appellant and his sons, according to the prayer of the bill; founded on an affidavit of one Patrick Owens, a poor illiterate marksman, who afterwards declared that he was imposed upon, in being made to swear such affidavit; in which it was asserted, that the respondent Moore Edgworth was eldest son and heir at law of the said Packington; but the appellant had no notice, that such application would be made, or any opportunity of making his defence, or shewing cause why the injunction should not be granted; and neither the respondent's mother, or any person of credit, swore that the respondents were legitimate children, or that Moore Edgworth was heir at law of Packington.

The appellant and his sons having been served with the injunction, forthwith appeared, as upon an attachment; and the appellant took upon him the defence of his right and title, and his sons denied the force charged in the bill.

On the 4th of October 1759, Magill, under colour of the injunction, entered in a riotous manner at the head of a great number of people, into the manor, broke the lock of the pound, and forcibly seized the royalties, and appointed a seneschal, constable, and pound-keeper, held a court, and forcibly drove the appellant's cattle off from the demesne lands, and used unjustifiable methods to induce and affright the tenants to quit the appellant, and pay Magill their rents. And in order to antici-

↑ Different statutes have been made in England against forcible entries, particularly in the 5th and 15th Rich. II. and 8th Hen. VI. which were introduced and made effectual in Ireland by the 10th Hen. VII, called Poyning's Laws: the statute of Hen. VI. hath the following proviso:

Provided always, that they which keep their possessions by force, in any lands or tenements whereof they or their ancestors, or they whose estates they have in such lands and tenements, have continued their possessions in the same by three years or more, be not endamaged by force of this statute.

And upon this proviso, the statute 31st Eliz. cap. 11, enacts, "That no restitution upon any indictment of forcible entry, or holding with force, be made, if the person indicted bath been in possession three years next before the indictment, and his estate therein be not ended or determined."
In Ireland, instead of resorting to a justice of the peace, or preferring an indictment in order to repel the intruder, and to get restitution of possession, the practice has usually obtained of resorting to the jurisdiction of Courts of Equity, by exhibiting what is termed a possessory bill, a measure peculiar to that country; which alledges a peaceable triennial possession in the person so dispossessed, or in his ancestors, or in those whose estate he hath; also a force committed, and the title still in being; and neither pays process to answer, nor any relief, but an injunction only to restore and quiet the possession: and on certificate of the bill being filed, and an affidavit of the possession and ouster, the injunction issues of course to the defendant, who is made to answer upon personal interrogatories, as in the case of a contempt; and in default of clearing his contempt, he is attached until payment of the costs; und when the cause comes to a hearing, au injunction issues to the sheriff to establish the possession, till eviction by due course of law. But as this hearing determines the possession only, and that in a summary way, till eviction by due course of law, the right is considered as a matter collateral and extrinsic, and is neither entered into or prejudiced, but reserved for more solemn decision in a proper suit to be instituted for that purpose.

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[2BroPC29n1-1] Different statutes have been made in England against forcible entries, particularly in the 5th and 15th Rich. II. and 8th Hen. VI. which were introduced and made effectual in Ireland by the 10th Hen. VII, called Poyning's Laws: the statute of Hen. VI. hath the following proviso:

Provided always, that they which keep their possessions by force, in any lands or tenements whereof they or their ancestors, or they whose estates they have in such lands and tenements, have continued their possessions in the same by three years or more, be not endamaged by force of this statute.

And upon this proviso, the statute 31st Eliz. cap. 11, enacts, "That no restitution upon any indictment of forcible entry, or holding with force, be made, if the person indicted bath been in possession three years next before the indictment, and his estate therein be not ended or determined."
In Ireland, instead of resorting to a justice of the peace, or preferring an indictment in order to repel the intruder, and to get restitution of possession, the practice has usually obtained of resorting to the jurisdiction of Courts of Equity, by exhibiting what is termed a possessory bill, a measure peculiar to that country; which alledges a peaceable triennial possession in the person so dispossessed, or in his ancestors, or in those whose estate he hath; also a force committed, and the title still in being; and neither pays process to answer, nor any relief, but an injunction only to restore and quiet the possession: and on certificate of the bill being filed, and an affidavit of the possession and ouster, the injunction issues of course to the defendant, who is made to answer upon personal interrogatories, as in the case of a contempt; and in default of clearing his contempt, he is attached until payment of the costs; und when the cause comes to a hearing, au injunction issues to the sheriff to establish the possession, till eviction by due course of law. But as this hearing determines the possession only, and that in a summary way, till eviction by due course of law, the right is considered as a matter collateral and extrinsic, and is neither entered into or prejudiced, but reserved for more solemn decision in a proper suit to be instituted for that purpose.

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