pears to be sufficient to state only that the prosecutor was in pos

session of the premises. (j)

A repugnancy in setting forth the offence in an indictment on Repugnancy; these statutes is an incurable fault: as where it is alleged that statement of disseisin, &c. 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. (k) It seems that an indictment on 8 Hen. 6. c. 9. setting forth an entry and forcible detainer is good, without shewing 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. (1) 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 a day entered, &c. end disseised, &c. without adding the words then and there; for it is the natural intendment that the entry and disseisin both happened together. (m) 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. (n) But no indictment can warrant an award of restitution, unless it find that the wrong-doer 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 vain to award it to one who does not appear to have lost it. (0)

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. (p)

The same justice or justices before whom an indictment of Of the award forcible entry or detainer shall be found may award restitution: but of restitution. 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

Of the bar or stay to the

award of restitution.

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. (q) But the justices of oyer and terminer, or general gaol delivery, though they may enquire of forcible entries, and fine the parties, yet cannot award a writ of restitution. (2)

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 those who are guilty of it punished, which may be done by 15 R. 2. c. 2. (s) 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. (t) 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. (u) And where a conviction of a forcible entry was quashed in that court 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. (w)

It appears by the proviso in the statute of 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. (r) And it has also been said that the three years' possession must be of a lawful estate; and therefore that a disseisor can

(q) 3 Bac. Abr. Forcible Entry, &c.
(F).

(r) Id. ibid and 1 Hawk. P. C. c. 64.
s. 51. where it is said that justices of
oyer and terminer have no power
either to enquire of a forcible entry
or detainer, or to award restitution on
an indictment on the statutes; because
when a new power is created by sta-
tute, and certain justices are assigned
to execute it, it cannot regularly be
executed by any other; and inasmuch
as justices of eyer 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,
&e. be construed to have any such
powers as are specially limited to jus-
tices of peace.
But in 4 Com. Dig.
Forc. Enir. (D 5.) it is said that jus-

tices of gaol delivery may award restitution upon an indictment before them: and Sav. 68. 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.

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

(1) Lamb. Just. 153. Dalt. c. 83. (u) Rex v. Marrow, Ca. temp. Hardw. 174.

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

(x) 3 Bac. Abr. Forcible Entry, &c. (G). 1 Hawk. P. C. c. 64. s. 53.

in no case justify a forcible entry or detainer against the disseisee having a 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. (y) 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 shew under what title, or of what estate, such possession was; because not the title, but the possession only, is material. () 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. (a) 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 costs. (b)

tution.

The same justices who have awarded a restitution on an indict- Of supersedment of forcible entry, &c. or any two or one of them, may after- ing the restiwards 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. (c)

titution.

The court of King's Bench has such a discretionary power over of setting these matters, from an equitable construction of the statutes, that aside the resif 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, er 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. (d)

The court of King's Bench has been so favourable 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 shewn 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. (e)

(y) 3 Bac. Abr. Forcible Entry, &c. the statute, ante, 285. (G). 1 Hawk. c. 64. s. 54.

(z) I Hawk. c. 64. s. 56.

(a) 3 Eac. Abr. Forcible Entry, &c. (G). 1 Hawk. c. 64. s. 58, 59. Reg. v. Winter, 2 Salk. 588.

(b) Reg. v. Goodenough, 2 Lord Raym. 1036. And see the words of

(c) 3 Bac. Abr. Id. ibid. 1 Hawk. c. 64. s. 61, 62.

(d) 3 Bac. Abr. Id. ibid. 1 Hawk. c. 61. s. 63, 64, 65.

(c) 3 Bac. Abr, Id. ibid. 1 Hawk. c. 61. s. 66.

How restitu

tion shall be made.

The justices or justice may execute the writ of restitution in person, or may make their precept to the sheriff to do it. (ƒ) 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 a restitution by reason of resistance, he shall be amerced. (g) And it is said, that a justice of peace or sheriff may break open a house to make restitution. (h) 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. (i) And where restitution is not ordered till three years after the inquisition, it is bad. (k)

(f) 1 Hawk. c. 64. s. 49.

(g) Id. ibid. sect. 52.

(h) 4 Com. Dig. Forcible Entry

(D 6.)

(i) Rex v. Harris, 1 Lord Raym. 482. (k) Rex v. Harris, 3 Salk. 313.

CHAPTER THE THIRTIETH.

OF NUISANCES.

vate.

NUISANCE, nocumentum, or annoyance, signifies any thing 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 any thing done to the hurt or Nuisances are annoyance of the lands, tenements, or hereditaments of another. (a) public and priPrivate 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.

(a) 3 Blac. Com. 216. 2 Inst. 406. (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 any 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. 5 Rep. 73. 3 Blac. Com. 219. And see also Fowler v. Sanders, Cro. Jac. 446. But the particular damage

56.