R v Bathurst
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1790 |
| Date | 01 January 1790 |
| Court | Court of the King's Bench |
English Reports Citation: 96 E.R. 860
COURTS OF KINGS BENCH
hex vers. bathurst. If any count in an indictment be good, the indictment is good. In an indictment for a forcible entry, it was charged in the first count; that the defendant did unlawfully and injuriously, with force and arms, and with a strong hand, enter into a messuage in the peaceable possession of the prosecutor, against the farm of the statute. In the second count it was charged; that the defendant did SAYBR, 228. TRINITY TEEM, 28 AND 29 GEO. II. 1755 861 unlawfully and injuriously, with force and arms, enter into the dwelling house of the prosecutor. Upon a demurrer to this indictment, one question was, whether the first count be good ? The justices were all of opinion; that this count is not good upon the statute, because it is not therein shewn, what estate the prosecutor had in the messuage; for he might be only tenant at will, and if he were so, a forcible entry upon the messuage is not an offence against the statute. Eyder Gh.J. and Foster J. were of opinion; that although the first count be not good upon the statute, it is, notwithstanding the conclusion thereof, good at the common law: and Foster J. mentioned the case of Page v. Harwood, All. 43, in which it was holden; that, notwith-[226]-standing the offence charged in an indictment be not an offence against a statute, and the conclusion of the indictment be against the form of the statute, the person indicted may be found guilty of an offence at the common law, in case the offence charged be an offence at the common law. He added; that forcible entry is an offence at the common law, and not one created by the statute; for that the statute does only, by ordering possession to be restored, give a more speedy remedy. Denison J. admitted; that a count in an indictment may, in some cases, be good at the common law, although the conclusion thereof be against the form of the statute : but as the entry is charged in the first count in the present indictment to be into a messuage, and to be with a strong hand, which words are contained in the statute against forcible entry, he doubted whether that count, as it appears to be a count upon the statute, be good at the common law. He added; that in 2 H. H. PI. C. it is laid down ; that if a person be indicted upon a statute, and the charge in the indictment do not bring him within the statute, he shall not be put to answer upon this indictment for an offence at the...
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