the premises, and if it do not, the inquisition will be quashed, and the Court will order restitution. (a)

The 8 Hy. 6, c. 9, was construed to authorize restitution only in cases where the person expelled was seized of an estate of inheritance. The 21 Jac. 1, 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. (b) When the inquisition, finding a forcible entry is quashed, the Court, upon the prayer of the party dispossessed under the Justices' writ, must award a writ of restitution to place him in possession. (c)

It was formerly held that where the prosecutor had been examined as a witness, restitution should not be granted. (d) This was because the evidence Act, 16 Vic., c. 19, excluded any claimant or tenant of premises sought to be recovered in ejectment. The late Act does not affect criminal proceedings, so that the decision will still, perhaps, hold in Ontario. 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 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. (e) Restitution cannot be awarded to one who never was in possession, or one who never has been dispossessed. (f)

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. (g) But, by an equitable construction of the Statutes, it has now a discretionary power to grant a writ of restitution. (h)

(a) Mitchell v. Thompson; 5 U. C. Q. B. O. S. 620.

(b) Rex. v. M'Kreavy, 625, per Robinson, C. J.

(e) Ib. 626, per Robinson, C. J.

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

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

(f) Boswell and Loyd. 13 L. C. R. 11, per Maguire, J.

(g) Reg. v. Ld. Mayor London, L. R. 4 Q. B. 371.

(h) Mitchell v Thompson, 5 U. C. Q. B. Ö. S. 628, per Robinson, C. J.

Where the 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 shew cause why a writ of restitution should not be issued:-Held that it was 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 prose cutor's case not being favoured, it was refused. (a)

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. (b)

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 enquiry 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. (c)

If an indictment is brought at common law for a forcible entry, it is only necessary to state the bare possession of the prosecutor; but in such case no restitution follows the conviction. (d)

A mere trespass will not support an indictment for forcible entry. There must be such force, or show of force, as is calculated to prevent resistance. (e) But where the defendant, and persons with him, having entered a

(a) Reg. v. Wightman, 29 U. C. Q. B. 211.

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

(c) Ib.

(d) Rex v. M'Kreavy, 5 U. C. Q. B. O. S. 629, per Sherwood, J. (e) Rex v. Smyth, 1 M. & Rob. 155; 5 C. & P. 201.

dwelling-house through an open door, and one of the persons having been seen to push out the windows, the defendant himself taking them off the hinges, it was held that a conviction for forcible entry should not be disturbed. (a)

A wife may be guilty of a forcible entry into the dwelling-house of her husband, and other persons also, if they assist her in the force, although her entry, in itself, is lawful. (b)

Nuisances.-It has been said there are three kinds of nuisances—namely, public, common, and private. (c)

To constitute a public nuisance, the thing complained of must be such as, in its nature or its consequences, is a nuisance, an injury or damage to all persons who come within the sphere of its operation, though it may be in greater or less degree. (d)

Throwing noxious matter into Lake Ontario, or any other public navigable water, is a public nuisance, and the person guilty thereof is liable to an indictment for committing a public nuisance, or to a private action, at the suit of any individual distinctly and peculiarly injured. (e) So obstructions to navigable rivers are public nuisances. (f) So if one person has a mill, by prescription, in his soil, and another erects a mill upon his soil, by which the stream to the mill of the former is straitened or stopped, or by which too great a quantity of water runs thereto, so that the mill is endangered, and cannot grind as much as it was wont, this is a nuisance to the mill. (g)

The collection of a crowd of noisy and disorderly

(a) Reg. v. Martin, 10 L. C. R. 435.

(b) Rex. v. Smyth, 1 M. & Rob. 155; Arch. Cr. Pldg. 849.

(c) Little v. Ince, 3 U. C. C. P., 545, per Macaulay, C. J.

(d) Ib; Reg. v. Meyers, 3 U. C. C. P. 333, per Macaulay, C. J.

(e) Watson v. City Toronto Gas and Water Co., 4 U. C. Q. B. 158.

(f) Brown and Gugy, 14 L. C. R. 213.

(g) Milla v. Dixon, 4 U. C. C. P. 227, per Macaulay, C. J.

people, to the annoyance of the neighbourhood, or outside grounds, in which entertainments with music and fireworks are given, for profit, is a nuisance, for which the giver of the entertainment is liable to an injunction, even although he has excluded all improper characters from the grounds, and the amusements within the grounds have been conducted in an orderly way, to the satisfaction of the police. (a)

It seems that a person who is annoyed by the noise of horses kicking in a stable contiguous to his dwelling, and by the stench from the manure, etc., cannot maintain an indictment to remove it. (b)

All disorderly houses are public nuisances, and may be indicted. (c) Where the defendants, as master and mistress resided in a house to which men and women resorted for the purpose of prostitution, but no indecency or disorderly conduct was perceptible from the exterior of the house-Held that the defendants were guilty of keeping a disorderly house. (d) But a conviction, under the 32 & 33 Vic., c. 32, for keeping a house of ill fame, or being an inmate of such a house, adjudicating that the accused should pay a fine of $50 forthwith, and be imprisoned for three months, unless the fine be sooner paid, is not warranted by s. 17 of the Statute, for imprisonment is only authorized by the Act, when it has been awarded as a substantive punishment. (e)

It would seem that though a Magistrate may have a general jurisdiction to hear any complaint against a disorderly inn or house, he has no right to issue a warrant to arrest a casual guest, quietly visiting a licensed tavern as a guest, at a time subsequent to the charge, and in no

(1) Walker v. Brewster, L. R. 5 Eq. 25.

(b) Lawrason v. Paul, 11 U. C. Q.a B. 537, per Robinson, C. J.

(c) Russ. Cr. 442.

(d) Reg. v. Rice, L. R. 1 C. C. R. 21; 35 L. J. (M. C.) 93. (e) Re Slater, 9 U. C. L. J. 21.

way present at or assisting in any disturbance or disorder, and this though the information charges the house to be a common disorderly ill-governed house, and a common nuisance in the neighbourhood, and the warrant is to apprehend the keeper thereof, and all others found therein. (a)

In general, all open lewdness, grossly scandalous, is indictable at common law, and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (b)

The prisoners were convicted of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath:-Held that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good. (c)

By the 10 & 11 Wm. 3, c. 17, all lotteries are declared to be public nuisances. (d) Where one hundred and forty-nine lots of land were sold by lottery, the person getting No. 1 ticket to have the first choice:-Held that this was a lottery, though it did not appear there was any difference in the value of the lots. The lottery consisted in having a choice of the lots, and that choice was to be determined by chance. (e) A sale of land by lot, in which there are two prizes, comes within the Imp. Stat. 12 Geo. 2, c. 28. (ƒ)

So the non-repair of a highway, or the obstruction thereof, is a nuisance, indictable at common law. (g)

A dam erected on a stream, without a proper apron or slide, in accordance with the 12 Vic., c. 87, is such a

(a) Cleland v. Robinson, 11 U. C. C. P. 421, per Hagarty, J.

(b) Russ. Cr. 449.

(c) Reg. v. Harris, L. R. 1, C. C. R. 282.

(d) Cronyn v. Widder, 16 U. C. Q. B. 361, per Robinson, C. J.

(e) Power v. Canniff, 18 U. C. Q. B. 403.

(f) Marshall v. Platt, 8 U. C. Č. P. 189.

(g) Reg. v. Corporation Paris, 12 U. C. C. P. 450, per Draper, C. J.