alem sive messuagium, &c., is good, for these are words equipollent (g) And an indictment for an entry into a close called Serjeant Herne's close, without adding the number of acres, is good; for here is as much certainty as is required in ejectment.(h) And an indictment may be void as to such part of it only as is uncertain, and good for so much as is certain: thus an indictment for a forcible entry into a house and certain acres of land may be quashed as to the land, and stand good as to the house.(i) Upon an indictment against a wife for a forcible entry into a house, which she had originally taken in her own name, but into which her husband had afterwards entered for the purpose of giving up possession to the owner, the house is well described as the house of the husband.(k)

An indictment on the 8 Hen 6, c. 9,(7) must show that the place was the freehold of the party grieved at the time of the force.(m) And in a case where the Court quashed an indictment, because it did not appear what estate the person expelled had in the premises, they said that it was absolutely necessary that this should appear, otherwise it would be uncertain whether any one of the statutes relative to forcible entries extended to the estate from which the expulsion was: the 5 Rich. 2, c. 7, the 15 Rich. 2, c. 2, and the 8 Hen. 6, c. 9, only extending to freehold estates; and the 21 Jac. 1, c. 15, extending only to estates holden by tenants for years, tenants by copy of court-roll, and tenants by elegit, statute merchant, and statute staple.(n) And it has been laid down as a general rule that an indictment cannot warrant a *restitution, unless it find that the party was seised *430] at the time.(0) So also an inquisition under the 8 Hen. 6, c. 9, will not warrant a justice in restoring possession, unless it set forth the estate possessed by the party in the property.(p) But an indictment which charges that the defendants forcibly entered into a messuage of one W. P., he the said W. P., then and there being being seised thereof, sufficiently avers the present seisin of W. P. to warrant the Court in awarding restitution. (q) But in an indictment at common law, where the breach of the public peace is the gist of the offence, and the prosecutor is not entitled to restitution and damages, it appears to be sufficient to state only that the prosecutor was in possession of the premises.(r)

A repugnancy in setting forth the offence in an indictment on these statutes is an incurable fault: as where it is alleged that the party was possessed of a term of years, or of a copyhold estate, and that the defendants disseised him; or that the defendants disseised J. S. of land then and yet being his freehold, for it implies that he always continued in possession; and if so, it is impossible he could be disseised at all.(s) It seems that an indictment on 8 Hen. 6, c. 9, setting forth an entry and forcible detainer is good, without showing whether the entry was forcible or peaceable but it must set forth an entry; for otherwise it does not appear but that the party has been always in possession, in which case he may lawfully detain it by force.(t) The time and place of the disseisin must be sufficiently set forth in the indictment; but it appears to be sufficient to state, that the defendant on such day entered, &c., and disseised, &c., without adding the words then and there;

:

(9) Ellis's case, Cro. Jac. 633; Palm. 277.

(h) Bac. Abr. tit. Forcible Entry, &c. (E.); 1 Hawk. P. C. c. 64, s. 37.

(i) Ibid.

(k) Rex v. Smyth, 1 M. & Rob. 155; s. c., 5 C. & P. 201 (24 E. C. L. R.). (1) Ante, p. 423.

(m) Rex v. Dorny, 1 Lord Raym. 210; 1 Salk. 260; Anon., 1 Vent. 89; 2 Keb. 495; Hetl. 73; Latch. 109.

(n) Rex v. Wannop, Say R. 142.

(0) Bac. Abr. tit. Forcible Entry, &c. (E.), where, and in 1 Hawk. P. C. c. 64, s. 38, see the cases on this subject collected. And see also Rex v. Griffith, et al., 3 Salk. 169. (p) Reg. v. Bowser, 8 D. & P. R. 128, Coleridge, J.

(9) Rex v. Hoare, 6 M. & S. 267; Rex v. Dillon, 2 Ch. R. 314.

(r) Rex v. Wilson, 8 T. R. 357.

(8) 1 Hawk. P. C. c. 64, s. 39; Bac. Abr. Forcible Entry, &c. (E.)

(1) Ibid., s. 40; Bac. Abr. Ibid. And see the statute, ante, p. 423.

1 See People v. Nostrand, 9 Wend. 60; People v. Reed, 11 Wend. 158; Yeates v. Allison,

2 Dana, 134; Mansfield v. Duvall, 2 Bibb 582; Taylor v. White, 1 Mon. 38; Smith v. Dedman, 4 Bibb 192; Beauchamp v. Morris, Ibid. 312.

for it is the natural intendment that the entry and disseisin both happened together.(u) A disseisin is sufficiently set forth by alleging that the defendant entered, &c., into such a tenement, and disseised the party, without using the words "unlawfully," or "expelled," for they are implied.(v) But no indictment can warrant an award of restitution, unless it find that the wrongdoer ousted the party grieved, and also continues his possession at the time of the finding of the indictment; for it is a repugnancy to award restitution of possession to one who never was in possession, and it is in vain to award it to one who does not appear to have lost it.(w)

If a bill, both for a forcible entry and forcible detainer, be preferred to a grand jury, and found "not a true bill" as to the entry with force, and "a true bill" as to the detainer, it will not warrant an award of restitution; but is void, because the grand jury cannot find a bill, true for part, and false for part, as a petit jury may.(x)1

*Upon an indictment on the 21 Jac. 1, c. 15, or 8 Hen. 6, c. 9, whereby restitution of the possession of lands entered upon by force, or holden by [*431 force, may be awarded to the respective tenants thereof; the tenant whose land has been entered upon, or withholden by force, is now a competent witness for the prosecution by the 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99.(y)

On an indictment at common law, the prosecutor need only prove a peaceable possession at the time of the ouster.(z) On an indictment upon the statutes a seisin in fee or the existence of a term or other tenancy must be shown;(a) but proof that the prosecutor holds colorably as a freeholder or leaseholder will suffice; and the Court will not, on the trial, enter into the validity of an adverse claim made by the defendant, which he ought to assert, not by force, but by action.(b)

The same justice or justices before whom an indictment of forcible entry or detainer shall be found may award restitution: but no other justices, except those before whom the inquest was found, can award restitution, unless the indictment be removed by certiorari into the Court of King's Bench; and that Court, by the plenitude of its power, can restore, because that is supposed to be implied by the statute; on the ground that whenever an inferior jurisdiction is erected, the superior jurisdiction must have authority to put it in execution. So, if an indictment be found before the justices of the peace at their quarter sessions, they have authority to award a writ of restitution, because the statute having given power to the justices or justice to reseise, it may as well be done by them in Court as out of it.(c) But the justices of oyer and terminer, or general gaol delivery, though they may inquire of forcible entries, and fine the parties, yet cannot award a writ of restitution.(d)

(u) Baude's case, Cro. Jac. 41; 1 Hawk. Ibid. s. 42. (v) Bac. Abr. Forcible Entry, &c. (E.)

(w) 1 Hawk P. C. c. 64, s. 41. (z) 1 Hawk. P. C. c. 64, s. 40.

But this it seems does not apply to the case of different counts in the same indictment, but only where the grand jury find "a true bill," and not a "true bill" upon different parts of one and the same charge. See Rex v. Fieldhouse, Cowp. 323.

(y) He was not competent formerly: Rex v. Williams, 9 B. & C. 549 (17 E. C. L. R.); 4 M. & R. 471; Rex v. Bevan, R. & M. N. P. C. 242.

(z) Talf. Dickenson 377.

(a) Reg. v. Child, 2 Cox C. C. 102, seems the other way; but the report is too loose to deserve any great weight.

(b) Per Vaughan, B., in Rex v. Williams, Monm. S. A., 1828, and confirmed on a motion for a new trial: Talf. Dickenson 377; and see Jayne v. Price, 5 Taunt. 326.

(e) Bac. Abr. tit. Forcible Entry, &c. (F.)

(d) Id. Ibid. and 1 Hawk. P. C. c. 64, s. 51, where it is said that justices of oyer and

1 Under an indictment for a forcible entry and detainer the jury may find the defendant guilty of a forcible detainer only: 8 Cow. 226, People v. Rickert. A warrant for a forcible entry or detainer is good-and an inquisition on such a warrant finding a forcible entry and detainer is valid: M Brayer v. Wash, 6 J. J. Marsh. 465. The finding of either is sufficient: Swartzwelder v. U. S. Bank, 1 J. J. Marsh. 44. If one only is charged, the defendant cannot be found guilty of the other: Cammack v. Macey, 3 Mar. 297; Sinclair v. Sanders, 3 J. J. Marsh. 303.

Restitution ought only to be awarded for the possession of tenements visible and corporeal; for a man who has a right to such as are invisible and incorporeal, as rents or commons, cannot be put out of possession of them, but only at his own election, by a fiction of law, to enable him to recover damages against the person that disturbs him in the enjoyment of them; and all the remedy that can be desired against a force in respect to such possessions is to have the force removed, and *432] those who are guilty of it punished, *which may be done by 15 Rich. 2, c. 2.(e) And restitution is to be awarded only to him who is found by the indictment to have been put out of the actual possession, and not to one who was only seised in law. (ƒ)1 Upon the removal of the proceedings into the Court of King's Bench by certiorari, that Court may award a restitution discretionally; and will so award, unless the defendant plead very soon, and take notice of trial within the term.(g) And the same principle applies to a judge of assize upon the finding of an indictment for forcible entry; namely, that the proceedings being ex parte, a discretion may be exercised. Where, therefore, an indictment for a forcible entry and detainer is found at the assizes, it is in the discretion of the judge whether he will grant restitution or not; and if he refuse to grant it, the Court of Queen's Bench will not inquire whether he has exercised his discretion rightly, or grant a mandamus to the judge to grant restitution.(h) But in the case of local magistrates, who are to go to the spot, and make inquiry by the inquisition of a jury, and examination of witnesses; if the jury find the facts, it is imperative on the justices to grant restitution; and the reason is that there has been a fair inquiry. And where a conviction of a forcible entry was quashed in the Queen's Bench for uncertainty, but the restitution was opposed on an affidavit that the party's title (which was by lease) was expired since the conviction, the Court said they had no discretionary power in this case, but were bound to award restitution on quashing the conviction.(k)

It appears by the proviso in the 8 Hen. 6, c. 9, and also by the 31 Eliz. c. 11, that any one indicted upon these statutes may allege quiet possession for three whole years to stay the award of restitution; in the construction of which it has been holden, that such possession must have continued without interruption during three whole years next before the indictment. (7) And it has also been said that the three years' possession must be of a lawful estate; and therefore that a disseisor can in no case justify a forcible entry or detainer against the disseisee having a terminer have no power either to inquire of a forcible entry or detainer, or to award restitution on an indictment on the statutes; because when a new power is created by statute, and certain justices are assigned to execute it, it cannot regularly be executed by any other; and inasmuch as justices of oyer and terminer have a commission entirely distinct from that of justices of peace, they shall not from the general words of their commission ad inquirend de omnibus, &c., be construed to have any such powers as are specially limited to justices of peace. But in Com. Dig. tit. Forc. Entr. (D. 5), it is said that justices of gaol delivery may award restitution upon an indictment before them and Sav. 78, is cited and afterwards Id. (D. 7), it is said that restitution shall not be by justices of assize, gaol delivery, or justices of peace, if the indictment was not found before them; and H. P. C. 140; Dalt. c. 44, 131, are cited; assuming here, as it should seem, that if the indictment were found before justices of assize and gaol delivery, they might award restitution and see infra, Reg. v. Harland.

(e) 1 Hawk. P. C. c. 64, s. 45; Lamb. Just. 153; Co. Lit. 323.

(f) Lamb. Just. 153; Dalt. c. 83.

(g) Rex v. Marrow, Ca. temp. Hardw. 174.

(h) Reg. v. Harland, 8 Ad. & E. 826 (35 E. C. L. R.); s. c., 1 P. & D. 93; 2 M. & R. 141. See Rex r. Hake, note (a) to Rex v. Williams, 4 M. & R. 483, where a judge, upon such an inquisition, granted a writ of restitution, not as a matter of right, but in the exercise of his discretion.

(i) Ibid. per Patteson, J.

(k) Rex v. Jones, 1 Str. 474.

(1) Bac. Abr. tit. Forcible Entry, &c (G.); 1 Hawk. P. C. c. 64, s. 53.

1 But naked possession without some estate or interest in the prosecutor is not enough: Burd v. Commonwealth, 6 Serg & R. 252.

In a proceeding by inquisition for a forcible entry and detainer before a writ of restitution can be awarded, the jury must find by their verdict that the party, forcibly dispossessed, had either a freehold or a term for years in the land, of the possession of which he has been deprived: Mitchell v. Fleming, 3 Ired. 123.

right of entry, as it seems that he may against a stranger, or even against the disseisee having, by his laches, lost his right of entry.(m) Wherever such possession is pleaded in bar of a restitution, either in the King's Bench or before justices of the peace, no restitution ought to be awarded till the truth of the plea be tried; and such plea need not show under what title, or of what estate, such possession was; because not the title, but the possession only, is material.(n) If the defendant tender a traverse of the force (which must be in writing), no restitution ought to be till such traverse be tried; in order to which the justice, before whom the indictment is found, ought to award a venire for a jury; but if *such jury find so much of the indictment to be true as will warrant a restitution, it will be sufficient, though they find the other part of it to be false. (o) Where the defendant pleads three years' possession in stay of restitution, according to 31 Eliz. c. 11, and it is found against him, he must pay the costs.(p)1

[*433

The same justices who have awarded a restitution on an indictment of forcible entry, &c., or any two or one of them, may afterwards supersede such restitution upon an insufficiency in the indictment appearing unto them: but no other justices or Court whatsoever have such power, except the Court of King's Bench; a certiorari from whence wholly closes the hands of the justices of peace, and avoids any restitution which is executed after its teste, but does not bring the justices into contempt without notice.(g)

The Court of King's Bench has such a discretionary power over these matters, from an equitable construction of the statutes, that if a restitution shall appear to have been illegally awarded or executed, that Court may set it aside, and grant a re-restitution to the defendant. But a defendant cannot in any case whatsoever, ex rigore juris, demand a restitution, either upon the quashing of the indictment, or a verdict found for him on a traverse thereof, &c.; for the power of granting a restitution is vested in the King's Bench only, by an equitable construction of the general words of the statutes, and is not expressly given by those statutes; and is never made use of by that Court but when, upon consideration of the whole circumstances of the case, the defendant shall appear to have some right to the tenements, the possession whereof he lost by the restitution granted to the prosecutor.(r) But where a conviction for a forcible entry or detainer is quashed by the Queen's Bench they have no discretionary power, but are bound to award re-restitution, although the conviction be quashed for a merely technical error, and the lease of the dispossessed person had expired during the litigation.(s)

The Court of King's Bench has been so favorable to one who, upon his traverse of an indictment upon these statutes being found for him, has appeared to have been unjustly put out of his possession, that they have awarded him a restitution, notwithstanding it has been shown to the Court that, since the restitution granted upon the indictment, a stranger has recovered the possession of the same land in the lord's court.(1)

(m) Bac. Abr. tit. Forcible Entry, &c. (G.); 1 Hawk. c. 64, s. 54.

(n) 1 Hawk. c. 64, s. 56.

(9) Bac. Abr. tit. Forcible Entry, &c. (G.); 1 Hawk. c. 64, ss. 58, 59; Reg. v. Winter, 2 Salk. 588.

(p) Reg. v. Goodenough, 2 Lord Raym. 1036. And see the words of the statute, ante, p. 423.

(9) Bac. Abr. Id. Ibid.; 1 Hawk. c. 64, ss. 61,

(7) Id., ss. 63, 64, 65.

62.

(8) Rex v. Jones, 1 Stra. 474; Rex. Wilson, 3 A. & E. 817 (30 E. C. L. R.), s. p. ; 5 N. & M. 164.

(t) Bac. Abr. Id. Ibid.; 1 Hawk. c. 64, s. 66.

1 Upon an inquisition for forcible entry and detainer, the defendant is entitled to traverse the force, or he may plead three years' possession, under the st. 31 Eliz. c. 11, and if he tender a traverse, the justices are bound to accept it, and ought not to grant a writ of restitution, but should return the inquisition without certiorari, to the Court of Sessions, there to be tried like other indictments; otherwise that court will grant a certiorari, which will be a supersedeas to such restitution, or after trial, a writ of re-restitution will be awarded if the defendant be acquitted or judgment arrested: State v. Spierea, 1 Brev.

The justices or justice may execute the writ of restitution in person, or may make their precept to the sheriff to do it.(u) The sheriff, if need be, may raise the power of the county to assist him in the execution of the precept; and therefore, if he make a return thereto that he could not make restitution by reason of *resistance, he shall be amerced. (v) And it is said, that a justice of peace or sheriff may break open a house to make restitution.(w)

*434] If possession under a writ of restitution is avoided immediately after execution by a fresh force, the party shall have a second writ of restitution without a new inquisition but the second writ must be applied for within a reasonable time.(x) And where restitution is not ordered till three years after the inquisition, it is bad.(y)

*435]

*CHAPTER THE THIRTIETH.

OF NUISANCES.

NUISANCE, nocumentum, or annoyance, signifies anything that worketh hurt, inconvenience, or damage. And nuisances are of two kinds: public or common nuisances, which affect the public, and are an annoyance to all the King's subjects; and private nuisances, which may be defined as anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. (a) Private nuisances, as they are remedied only by civil proceedings, do not come within the scope of this Treatise; but public or common nuisances, as they annoy the whole community in general, and not merely some particular person, are properly punishable by indictment, and not the subject of action; for it would be unreasonable to multiply suits by giving every man a separate right for what damnifies him in common only with the rest of his fellow-subjects. (b) In treating of public or common nuisances, we may consider-I. Of public nuisances in general. II. Of nuisances to public highways. III. Of nuisances to public rivers. And IV. Of nuisances to public bridges.

(u) 1 Hawk. c. 64, s. 49.

(v) Id. Ibid. sec. 52.

(x) Rex v. Harris, 1 Lord Raym. 482.

(w) Com. Dig. tit. Forcible Entry (D.) 6. (y) Rex v. Harris, 3 Salk. 313. (a) 3 Blac. Com. 216; 2 Inst. 406. As to private nuisances, see Hole v. Barlow, 4 C. B. (N. Ś.) 334 (93 E. C. L. R.); Stockport Water Works Co. v. Potter, 7 H. & N. 160; Bamford v. Turnley, 2 F. & F. 231; Cavey v. Ledbitter, 3 Id. 14; 13 C. B. (N. S.) 470 (106 E. C. L. R.); Walter v. Selfe, 4 De G. & S. 315; Beardmore v. Tredwell, 31 Law J., Chanc. 892; Hodgkinson v. Ennor, 4 B. & S. 229 (116 E. C. L. R.); Tipping v. St. Helen's Smelting Company, 4 B. & S. 608 (116 E. C. L. R.); Roberts v. Yardley, 3 H. & C. 162 ; Bamford v. Turnley, 3 B. & S. 62 (113 E. C. L. R.).

(b) 4 Blac. Com. 166. There are, however, circumstances mentioned in the books upon which a party has been admitted to have a private satisfaction by civil suit for that which is a public nuisance; namely, where he has sustained some extraordinary damage by it beyond the rest of the King's subjects. As if by means of a ditch dug across a public way, which is a common nuisance, a man or his horse suffer an injury by falling therein; there, for this particular damage, not common to others, it has been held, that the party may have his action: Co. Lit. 56; 5 Rep. 73; 3 Blac. Com. 219. And see also Fowler v. Sanders, Cro. Jac. 446. But the particular damage in this case must be direct, and not consequential, as by being delayed in a journey of importance: Bull. N. P. 26. In Rex v. Dewsnap, 16 East 196, Lord Ellenborough, C. J., said, "I did not expect that it would have been disputed at this day that though a nuisance may be public, yet that there may be a special grievance, arising out of the common cause of injury, which presses more upon particular individuals than upon others not so immediately within the influence of it. In the case of stopping a common highway which may affect all the subjects, yet if a particular person sustain a special injury from it, he has an action." And in Duncan . Thwaites, 3 B. & C. 584 (10 E. C. L. R.), Abbott, C. J., said, "I take it to be a general rule, that a party who sustains a special and particular injury by an act which is unlaw ful, on the ground of public injury, may maintain an action for his own special injury." And see Rose v. Miles, 4 M. & S. 101; Butterfield v. Forester, 11 East 60.