which the statute provides is not strictly followed, the whole foundation upon which the proceedings rest, fails.

The second plea raises substantially the same question: if the last count is good, the second plea is no answer to it. It will be contended for the defendant that the second count does not show any special damage. It, however, shows that the plaintiff was turned out of the house, and that surely is special damage enough.

Prentice, contrà. (a) The second count is *substantially a *174] count in trespass: it alleges an unlawful entry and expulsion' under colour of a warrant: and the plea shows that the defendant had a lawful right to enter. Assuming that all the proceedings before the magistrate were illegal and void, the defendant is still entitled to succeed in this action, inasmuch as, the plaintiff's tenancy having been legally put an end to, he had a right to enter. [CRESSWELL, J.-Newton v. Harland, 1 Scott, N. R. 474, 1 M. & G. 644 (E. C. L. R. vol. 39). WILLIAMS, J.-If the court should think that the proceedings were only irregular, there is a good count in case alleging the irregularity. You may treat it either way.] It is submitted that the second count is nothing more than a count in trespass, and that the plea is clearly a good answer to it. A civil action cannot be maintained for a forcible entry. In Harvey v. Brydes, 14 M. & W. 437, 442,† though it became. unnecessary to decide the point, Parke, B., said: "The next point was that raised in Newton v. Harland: and, if it were necessary to decide it, I should have no difficulty in saying, that, where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the

(a) The points marked for argument on the part of the defendant, were,—

As to the demurrer to the second count,-"That that count does not disclose any cause of action that the proceedings set forth in that count are regular within the true intent and meaning of the act of parliament in that count mentioned: that, if that count does disclose any defect in the proceedings therein set forth, such defect amounts to a mere informality or irregularity, which would only be actionable, under the 6th section of that statute, in case of special damage, to be set forth on the face of the count, and that the last count discloses no such special damage that the count is bad, for not alleging that the proceedings set forth therein were taken by the defendant maliciously and without reasonable or probable cause: that, even if the proceedings set forth in that count were not merely informal and irregular, but void, the special count would not be maintainable, but a count in trespass only: that the last count is bad as a count in trespass, as it does not directly allege the plaintiff's possession and the defendant's entry upon that possession, and it is consistent with all that appears in that count that the tenancy may have expired, and that the plaintiff may have been wrongfully holding over, and that the defendant may have had a right of entry upon the plaintiff's possession, so that an action of trespass would not be maintainable."

As to the demurrer to the second plea,-"That that plea is good in substance, as showing that the defendant was entitled to take the proceedings for recovery of possession in the last count mentioned, and also as showing a right of entry in the defendant on the plaintiff's possession, irrespective of that statute; so that the plaintiff could not sustain the last count as for an informality or irregularity in the proceedings, which the defendant was entitled to take, without showing special damage; nor as a count in trespass, for proceedings wholly void, the last plea disclosing a right of entry by the defendant on the plaintiff's possession, and the unlawfulness of that possession as against the defendant."

shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a per[*175 fectly good justification to say that the plaintiff was in possession. of the land against the will of the defendant, who was owner, and that he entered upon it accordingly; even though, in so doing, a breach of the peace was committed." In Burling v. Read, 11 Q. B. 904 (E. C. L. R. vol. 63), to a declaration in trespass charging that the defendant broke and entered the plaintiff's workshop, while the plaintiff was inhabiting and present in it, and, while the plaintiff was so inhabiting and present, pulled it down, the defendant pleaded pleas asserting that the workshop was the defendant's and denying that it was the plaintiff's: and it was held, that, on issues joined upon these averments, it was immaterial whether the plaintiff was or was not inhabiting and present at the time of the alleged trespass; and that the defendant was entitled to the verdict, upon proof that he had a right to the soil. Many other authorities might be referred to, to show that a civil action cannot be maintained for a forcible entry; and that the averment of vi et armis is a mere formal allegation, and does not amount to an allegation of a forcible entry. The second count alleges that the tenancy was duly determined by a notice to quit, and that the plaintiff wrongfully held over, in defiance of the defendant's lawful right to the possession. It would be strange, indeed, if the defendant should find himself in a worse position by reason of his having obtained the warrant. The mere obtaining a warrant is declared by s. 3, to be a trespass, if the person to whom the warrant is granted had not at the time of granting it lawful right to the possession of the premises, although no entry should be made by virtue of the warrant. Next, it is submitted that the only action that can be brought under this statute, is, an action upon the case alleging special damage, pursuant to s. 6, which enacts, "that, where the landlord, at the time of applying for such warrant as aforesaid, had lawful right to the possession of the *premises, or of [*176 the part thereof so held over as aforesaid, neither the said landlord nor his agent, nor any other person acting in his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this act; but the party aggrieved may if he think fit bring an action on the case for such irregularity or informality, in which the damage alleged to be sustained thereby shall be specially laid, and may recover full satisfaction for such special damage, with costs of suit: provided, that, if the special damage so laid be not proved, the defendant shall be entitled to a verdict, and that, if proved, but assessed by the jury at any sum not exceeding 58., the plaintiff shall recover no more costs than damages, unless the judge before whom the trial shall have been held shall certify upon the back of the record, that, in his opinion, full costs ought to be allowed." Here, no special damage is alleged. [WILLIAMS,

J.-What sort of special damage do you say is contemplated by the act? Are there costs given?] The justices have power to give costs in all cases. It is difficult to say what the legislature meant by special damage: but they clearly must have meant something more than the mere expulsion from the premises, or there would have been no difficulty in stating it. Then, as to the objection that the form given by the statute has not been strictly complied with. If that objection be well founded, the omission of a single letter would be fatal. It is enough, however, if the notice served substantially follows the form. [CRESSWELL, J.-In some instances, as in cases under the Uniformity of Process Act, 2 W. 4, c. 39, the Registration of Voters Act, 6 & 7 Vict. c. 18, and the recent Bills of Exchange Act, 18 & 19 Vict. c. 67, the parties have been held bound to follow the prescribed forms with extreme closeness and precision.] The notice here given, is, it is submitted, a perfect compliance with *the form prescribed. The *177] objections to it are, that the defendant is not stated to be the "owner" of the premises; and that the "place" at which the party is to appear to show cause why the warrant should not issue, is not sufficiently pointed out. The name of the landlord or owner is, however, stated in the notice; and the pleadings show that Gregory Fox is the owner. Then, as to the place, the party is informed that the applicacation will be made to the justices acting in and for the borough of Bradford, on a given day, and at a given hour. She was bound to know where the petty sessions are held.

Milward, in reply.-The plaintiff is entitled to recover on both counts; and the pleas afford no answer. Professing to act upon the statute, the defendant serves the plaintiff with an irregular notice, and causes her to be turned out of the premises, without giving her the means of appearing to show cause against the issuing of the warrant. If special damage be necessary, it is sufficiently alleged.

CRESSWELL, J.-I am of opinion that the plaintiff is entitled to the judgment of the court upon the second count of the declaration in this case, and that the defendant is entitled to judgment on the demurrer to the second plea. The second count begins with stating that the plaintiff, after the passing of the statute 1 & 2 Vict. c. 74, was tenant to the defendant of certain premises, and that the defendant caused to be served upon her the notice set out, and, without the plaintiff having appeared before such justices, or having been heard to show cause, or had any means or opportunity to show cause against the issuing of such warrant as in the notice mentioned, procured to be issued and executed on the plaintiff a certain warrant, which is also set out, whereby and *under the authority of which proceedings the plaintiff was *178] forcibly ejected and expelled from the premises. Primâ facie that, though somewhat strange and informal, is still a count in trespass, and therefore such as to entitle the plaintiff to judgment thereon. But

then comes the second plea, which shows that the landlord had a right to the possession of the premises, and therefore would be entitled to enter. That being so, the learned counsel for the plaintiff insists that the second count may be treated as a count in case, and as relying not on the ground of want of title in the defendant to enter, but on the ground of his having proceeded irregularly under the act. Whether or not the plaintiff can so contend, may be open to a little doubt, seeing that in the first part of the count she disputes the defendant's title to the possession. I do not, however, say that it cannot be sustained as a count charging irregularity in the proceedings. But then comes the 6th section of the statute, which says, that, "where the landlord at the time of applying for such warrant as aforesaid had lawful right to the possession of such premises, neither the landlord nor his agent, nor any other person acting in his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this act," here the defendant has been guilty (we may assume) of an irregularity, the notice not being in the form required by the statute: that, therefore, precludes the plaintiff from recovering in trespass: but the statute goes on,--“ but the party aggrieved may if he think fit bring an action on the case for such irregularity or informality, in which the damages alleged to be sustained THEREBY shall be specially laid." Now, I do not find any special damage alleged as arising from the informality of the proceeding: it is not averred that the plaintiff was turned out of the premises, or was *put to any costs, or sustained any other damage by reason of the [*179 irregularity. For these reasons, I am of opinion that the plaintiff must have judgment on the demurrer to the second count, and the defendant must have judgment on the demurrer to the second plea.

WILLIAMS, J.—I am of the same opinion. Looking at the facts disclosed in the second count and in the second plea, it appears to me that this is one of the cases contemplated by the 6th section of the 1 & 2 Vict. c. 74. Upon the present principles of pleading, it is our duty, where, upon the whole facts disclosed upon the record, it appears that the plaintiff is entitled to maintain the action, to hold him to be so entitled, notwithstanding any mere informality in the mode of alleging the ground of complaint. But, in the present case, it does not appear that the plaintiff is entitled to maintain the action, because the 6th section of the act only gives him a right to bring an action alleging specially the damages he has sustained by reason of any irregularity or informality in the mode of proceeding for obtaining possession of the premises under the authority of the act. No such special damage is alleged here. The terms of the 6th section certainly are somewhat obscure. It does not seem to have occurred to the minds of the legislature that the landlord might be entitled to enter without the aid of a warrant.

CROWDER, J.-The first question in this case arises upon the demurrer

to the second count of the declaration, and that is as to the validity of the notice there set out. The plaintiff insists that she has disclosed a good cause of action in that count, because she has shown that she was served with an informal and irregular notice under the statute, and was, without having appeared, or having the means or opportunity of *180] *appearing to object, expelled from the premises under a warrant founded upon that informal notice. It seems to me that the notice set out was an informal notice, inasmuch as it omitted to specify the place at which the plaintiff was to appear for the purpose of showing cause against the issuing of a warrant. It seems to be rather doubtful whether the notice ought also to have alleged in terms that the party giving it was the agent of the owner of the premises: but, on the ground before stated, I think the notice was informal. (a) Assuming the notice, then, to be informal, the next question is whether there is a good cause of action stated in the second count. I agree that it is not now necessary that the cause of action should be alleged with any precise formality: and I think there is a ground of action sufficiently stated in the second count, and therefore that there should be judgment for the plaintiff on the demurrer to that count. Then comes the demurrer to the second plea. That plea contains the important allegation that the defendant had lawful right to the possession of the premises, the plaintiff's tenancy having been duly determined by a notice to quit, and the plaintiff having wrongfully held over. This renders it necessary to refer to the 6th section of the 1 & 2 Vict. c. 74, which provides, that, where the landlord at the time of applying for the warrant had lawful right to the possession of the *premises, he shall not be deemed a tres*181] passer by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of the act; but that the party aggrieved may bring an action on the case for such irregularity or informality, in which the damage alleged to be sustained thereby, that is, the damage arising from the irregularity or informality, shall be specially laid. This is an action for the irregularity it is therefore made specially necessary that the ground of action shall be laid by way of special damage. Now, what damage is alleged in the second count to have arisen from the irregularity in the mode of. proceeding? It appears upon the whole record that the plaintiff ought to have been turned out of possession. It is said she had no proper notice to appear. Suppose she had appeared, all that she could have heard would have been, that she had no right to retain possession of the premises, and must be turned out. I therefore think the second plea is

(a) This doubt is generated by the position in which the word "owner" is found in the former. The first time it is used, it is improperly pleaded within the brackets, as part of the words of direction, instead of being, as it should have been, pleaded outside as part of the substance of the form. This form (as, indeed, are all the forms given in the schedule to this act) is throughout very inaccurately printed in this respect; some of the directory words being placed as part of the body of the notice: so that a notice in literal compliance with the form would clearly be a bad notice.