become involved in a sudden affray, none are guilty but those who actually engage in it, for the breach of the peace was not part of their original purpose. (q) But it seems to be immaterial whether the act intended to be done by the persons assembling be in itself lawful or unlawful. (r)

Where a riot is proved to have taken place, the mere presence of a person among the rioters, even although he possessed the power of stopping the riot, and refused to exercise it, does not render him liable as one of the rioters. (s) In order to render him so liable, it must be shown that he did something by word or act, to take part in, help, or incite the riotous proceeding. (t) It is not necessary to constitute a riot that the Riot Act (u) should be read. Before the proclamation can be read, a riot must exist, and the effect of the proclamation will not change the character of the meeting, but will make those guilty of felony who do not disperse within an hour after the proclamation is read. (v)

An assemblage of persons to witness a prize fight is an unlawful assembly, and every one present and countenancing the fight is guilty of an offence. (w)

By the common law, every private individual may lawfully endeavor, of his own authority, and without any warrant or sanction from a magistrate, to suppress a riot, by every means in his power. He may disperse, or assist in dispersing, those assembled, and stay those engaged in it from executing their purpose, as well as stop and prevent others whom he may see coming up from joining the rest. It is his bounden duty to do this, and even to arm himself, in order to preserve the peace, if the riot be general and dangerous. If the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of a magistrate,

(q) Russ. Cr. 381; Reg. v. Corcoran, 26 U. C. C. P. 134.

(u) 31 Vic., c. 70.

() Reg. v. Furzey, 6 C. & P. 81.

(w) Reg. v. Bellingham, 2 C. & P. 234; Reg. v. Perkins, 4 C. & P. 537 ; Arch. Cr. Pldg. 842-3.

it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumultuous assembly, and the law will protect him in all that he honestly does in prosecution of this purpose. (x) This power and duty devolve upon a governor of a colony, as well as others, in case of riot and rebellion. (y) By the 31 Vic., c. 70, s. 5, persons suppressing a riot are justified, though the death of a rioter may ensue. This is now the governing enactment as to riots throughout the Dominion.

Forcible entry or detainer.-This offence is committed by violently taking or keeping possession of lands and tenements with menaces, force, and arms, and without the authority of the law. (2) It is a misdemeanor at common law, and there is no doubt an indictment will lie at common law for a forcible entry, if accompanied by such circumstances amount to more than a bare trespass, and constitute a public breach of the peace. (a)

as

The object of prosecutions for forcible entry is to repress high-handed efforts of parties to right themselves; (b) and there seems now no doubt that a party may be guilty of a forcible entry by violently and with force entering into that to which he has a legal title. (c) And it is not necessary that the force should be actual; but if the occupant of the lands have good reason to believe that sufficient force will be used to compel him to leave, and he leaves accordingly, the party menacing may be convicted of forcible entry. (d)

The stats. 8 Hy. IV., c. 9, 8 Hy. VI., c. 9, 6 Hy. VIII., c. 9, and 21 Jac. I., c. 15, as to forcible entries, seem to be in force in this country. (e)

(x) Phillips v. Eyre, L. R. 6 Q. B. 15, per Willes, J.

(y) Ibid.

(z) Russ. Cr. 421.

(a) Reg. v. Wilson, 8 T. R. 357; Reg. v. Bake, 3 Burr. 1731; Arch. Cr. Pldg. 851.

(b) Reg. v. Connor, 2 U. C. P. R. 140, per Robinson, C. J.

(c) Newton v. Harland, 1 M. & Gr. 644; Butcher v. Butcher, 7 B. & C. 399; 1 M. & R. 220; Hillary v. Gay, 6 C. & P. 248; Russ. Cr. 421-2. (d) Reg. v. Smith, 43 U. Č. Q. B. 369.

(e) Ante, p. 9.

Under these statutes, the party aggrieved by a forcible entry and detainer, or a forcible detainer, may proceed by complaint made to a local justice of the peace, who will summon a jury, and call the defendant before him, and examine witnesses on both sides if offered, and have the matter tried by the jury. (f) The party may, however, also proceed by action or by indictment at the General Sessions. (g) And if a forcible entry or detainer be made by three persons, or more, it is also a riot, and may be proceeded against as such, if no inquiry has before been made of the force. (h)

It has been held that the private prosecutor, on an indictment for forcible entry or detainer, cannot be examined as a witness, if the court may order restitution. (i) As this disability, however, rests solely on the ground of interest, it is, no doubt, removed in Ontario, at least, by the Con. Stats. U. C., c. 32. If, since the forcible entry, the prosecutor has been restored to possession, he may be a witness. (j)

An inquisition taken before a justice is bad if it appears to the court that the defendant had no notice, or that any of the jury had not lands or tenements to the value of forty shillings, for the 8 Hy. IV., c. 9, expressly requires that persons who are to pass on such an inquisition should have lands of that value. (k) The notice is not required by the 8 Hy. VI., c. 9, but the uniform course of criminal proceedings renders it necessary that, before a person shall be found a criminal, he shall be called upon to make defence; and, in addition to this principle, the courts have recognized the propriety of notice in this proceeding, on the ground that it would be wrong to put a person out of possession

Boswell and Loyd, 13 L. C. R. 10, per Maguire, J.

(g) Russ. Cr. 428.

(h) Ibid.

(i) Reg. v. Hughson, Rob. Dig. 124; Reg. v. Beavan, Ry. & M. 242 ; Reg. v. Williams, Man. & R. 471; 9 B. & C. 549.

(5) Reg. v. Hughson, supra.

(k) Rex v. McKreavy, 5 U. C. Q. B. O. S. 620.

of his house or land upon a complaint of which he has no knowledge. ()

On an indictment for forcible entry or detainer of land, evidence of title in the defendant is not admissible. (m) Where the defendants applied for delay, in order to give evidence of title, but on the prosecutor consenting to waive restitution in the event of conviction, they were compelled to go to trial, and were convicted, a writ of restitution was afterwards refused, though it seems it would in any case have been improper to delay the trial for the reason urged. (n)

An inquisition for a forcible entry, taken under 6 Hy. VIII., c. 9, must show what estate the party expelled had in the premises, and if it do not, the inquisition will be quashed, and the court will order restitution. (0)

The 8 Hy. VI., c. 9, was construed to authorize restitution only in cases where the person expelled was seized of an estate of inheritance. The 21 Jac. I., c. 15, extends the remedy to a tenant for years; and, in the opinion of Lord Coke, the latter statute will apply to a tenant for a term less than a year. (p) When the inquisition finding a forcible entry is quashed, the court, upon the prayer of the party dispossessed under the justice's writ, must award a writ of restitution to place him in possession. (q)

It was formerly held that where the prosecutor had been examined as a witness, restitution should not be granted. (r) This was because the evidence Act, 16 Vic., c. 19, excluded any claimant or tenant of premises sought to be recovered in ejectment. On an indictment for forcible entry, containing two counts, one at common law and the other under the statutes, the prosecutor alleging that he had a term of years

(1) Rex. v. MeKreavy, 5 U. C. Q. B. O. S. 626, per Robinson, C. J. (m) Reg. v. Cokely, 13 U. C. Q. B. 521.

(n) Reg. v. Connor, 2 U. C. P. R. 139.

(0) Mitchell v. Thompson, 5 U. C. Q. B. O. S. 620.

(p) Rex v. McKreavy, supra. 625, per Robinson, C. J.

(q) Ibid. 626, per Robinson, C. J.

(r) Reg. v. Connor, 2 U. C. P. R. 139.

in the land, there was a general verdict of guilty; a writ of restitution was refused, it appearing that the lease of the land had expired. (s) Restitution cannot be awarded to one who never was in possession, or one who never has been dispossessed. (t)

The Court of Queen's Bench had at common law no jurisdiction to issue a writ of restitution, except as part of the judgment on an appeal of larceny. (u) But, by an equitable construction of the statutes, it has now a discretionary power to grant such writ. (v) A defendant, having been convicted at the Quarter Sessions on an indictment for forcible entry, was fined; but that court refused to order a writ of restitution, and the case was removed into the Queen's Bench by certiorari, and a rule obtained to show cause why a writ of restitution should not be issued; it was held in the discretion of this court either to grant or refuse the writ; and, under the circumstances, the verdict being against the charge of the learned chairman, and he having declined to grant the writ, and the prosecutor's case not being favored, it was refused. (w)

The Court of General Sessions, where the indictment is found, may, before trial, award a writ of restitution; but it is entirely in the discretion of the court to grant or refuse such writ. (x)

But a justice out of sessions cannot award restitution on an indictment of forcible entry, or forcible detainer, found before him by the grand jury, at the sessions. He can only do so if seized of the case out of sessions, and after inquiry before a jury, on a regular inquisition. The statement that the justices in court, or out of court, may award a writ of restitution only holds to the extent above-mentioned. (y)

(8) Rex v. Jackson, Draper, 53.

(t) Boswell and Lloyd, 13 L. C. R. 11, per Maguire, J.

(u) Reg. v. Lord Mayor of London, L. R. 4 Q. B. 371.

(v) Mitchell v. Thompson, 5 U. C. Q. B. O. S. 628, per Robinson, C. J. (w) Reg. v. Wightman, 29 U. C. Q. B. 211.

(x) Boswell and Loyd, 13 L. C. R. 6.

(y) [bid,