
    APPLEGATE v. APPLEGATE.
    On Certiorari on complaint of forcible detainer.
    A complaint that the defendant forcibly detains the “messuage or dwelling house,” is too loose and uncertain. And judgment on such complaint, that the plaintiff have restitution of the messuage, lands, and tenements, &c. and a writ of restitution conforming to said judgment, are erroneous and cannot be supported.
    Omitting to record in the justice’s docket, the sheriff’s return to the venire, is a fatal error.
    
      II. W. Green,
    
    moved for a reversal of the judgment, for the following reasons;
    
    1. Because the sheriff’s return does not show how and when he served the summons. Rev. I. 350, Sec. 9; 1 Backus’ Sh. 255.
    2. The sheriff did not sign his name to the return on the summons.
    3. Nor to his return on the venire. 7 Hals. 186; Rev. L. 352 Sec. 16; Ib. 240, Sec. 17; 1 Back. Sh. 255; Cro. Eliz. 311. Cro. Jac, 188; Cro. Car. 189.
    4. The estate set out, varied from the proof.
    
      5. The complaint was for detainer of a messuage or dwelling house. Rev. L. 350 Seo. 7, 8.
    6. The Justice has not recorded the sheriff’s return to the venire.
    
   This case was argued at Novemoer term 1837, and" the following opinions were delivered at the present term.

Hornblower, C. J.

Several reasons have been assigned for the reversal of the judgment in this case, some of which must prevail.

1st. It is objected, that the complaint is uncertain: it does not specify, as the statute directs, the lands, tenements or possessions, forcibly detained.

The complaint sets forth, that the defendant on a certain day, entered into “ the messuage, or dwelling house of the plaintiff, situated in the township of Downs, in the county of Monmouth, whereof the plaintiff is seized in fee, and forcibly detains the said messuage or dwelling house.” This is entirely too loose and uncertain. By the 7th section of the statute, Rev. Laws, 349, the plaintiff is required to specify in his complaint “ the lands, tenements or other possessions,” forcibly detained. But here is no” specification; “ the messuage or dwelling house of the plaintiff situated in the township of Downs” is not such a description of the property as the law requires. A messuage, properly signifies, a dwelling house, with some adjacent land assigned to the use of it. (4 Jac. Law Diet. 281.) But this complaint is not for detaining a messuage, which would include a dwelling house with lands adjacent; nor is it for detaining a dwelling house without any lands; but it is for detaining, the one, or the other; which, it is impossible to tell; yet the jury have found the defendant guilty of the forcible detainer whereof the plaintiff had complained against him; that is they found him guilty of detaining, the messuage or the dwelling house. Upon this finding however, the Justice, gave judgment that the plaintiff have restitution, not of the messuage or dwelling house, but of the “said messuage, lands and tenements with the appurtenances.”

If a writ of restitution issues upon this judgment, it must of course be as extensive as the judgment;. the complainant, then, in an action for the recovery of a messuage or a dwelling house, will be put into possession of a messuage, lands and tenements, with the appurtenances.

Such a proceeding cannot be supported, and the judgment, for this cause, must be reversed.

2d. Another error assigned is, that the return of the venire does not appear of record.

The Justice, after stating in his record that the sheriff had returned the summons, and copying the return, says, “also the venire with a return endorsed” — but he has not entered the return on his docket. This is a fatal objection according to the case of Prickett v. Prickett, 7 Halst. R. 186.

Other errors were assigned but it is unnecessary to examine them. Let the judgment be reversed.

Foiíd, J. Concurs.

Ryersoít, J.

I concur in the reversal of this judgment; chiefly for the defect in the return to the process of summons and venire. The statute requires the return to be entered on the Justice’s docket. And as thus entered, it is without the sheriff’s signature. This is a defect, either in the return, or record thereof; and is fatal. Rev. Laws, 240 Sec. 17; ib. 352; Sec. 16—7 Hal. 186, Prickett v. Prickett.

Nor has the sheriff shown the manner of the service, as was insisted, he should have d'one. But on this point I intimate no opinion.

It was also objected on the argument, that the estate as set out in the complaint, and as proved on the trial, are variant. But I do not perceive how we can reverse for this cause. Any evidence of the complainant’s estate, ought not to be received by the Justice, by express direction of the statute. Whatever entry therefore, of such evidence was given, was surplusage. And should not vitiate the judgment, when it was not objected to on the trial, and does not appear to have injured the defendant.

fSTor am I certain that the expression messuage, or dwelling house, as used in the complaint, are fatal: But the words may be considered as merely synonymous and tautological. But the judgment itself, being for more than was demanded, is fatally erroneous.

Judgment reversed.

Cited in Townly v. Rutan, Spencer 607; Drake v. Newton, 3 Zab. 112.  