delivered the opinion of the Court. We think a new trial must be granted in this case, because the jury were instructed, that upon the facts proved at the trial the defendant had no right to break open the dwelling-house occupied by the plaintiff, and forcibly enter, for the purpose of making an attachment. The jury should have been instructed, that although the writ of attachment gave him no such right, yet as the plaintiff’s lease had expired at the time of the entry and the house belonged to the defendant, the plaintiff could not maintain trespass quare clausum for the forcible entry ; and that although the defendant could not justify the personal injury, yet the plaintiff was not entitled to recover any damages for the injury to the house. That this is the law, in respect to forcible entries upon land, seems to be well settled; and we do *40not .find that any different principle is recognised in respect to the breaking into a dwellinghouse. The defendant may be indicted for the forcible entry and breaking into the house, but the plea of liberum tenementum would be a good justification to the charge for breaking the house We think, however, that this might be proved and considered, by way of aggravation of damages for the personal injury., if it had been so laid in the writ. But this injury is complained of as a distinct trespass ; and in this form the action cannot be maintained for the forcible entry. The plaintiff’s counsel will judge whether it is desirable to amend the writ, so as to render it conformable to this view of the law, or whether they will proceed to another trial on the declaration in its present form.
The next "and only remaining question to be determined is, whether the facts proved amount to a defence for the personal injury complained of; and we are very clearly of opinion that they do not. The defendant is charged, not merely with forcibly breaking and entering the dwelling-house, but with an assault and battery, and with other outrages on the person of the plaintiff, as well as with the abuse of his family. To this part of the injury charged no defence has been made. It has been argued that this is only matter of aggravation ; but we consider it a distinct injury, and by far the heavier part of the charge, and for which the plaintiff is entitled to compensation.
Hammond, in his treatise on the law of nisi prius, has laid down the principles of law, and the rules of pleading, on this point, with great correctness. “ Supposing,” he says, “ that the matter will admit of both a general and a particular mode of description, then, if in the form in which it is alleged, the plaintiff will not be entitled to claim a compensation for it as a separate grievance, it must be considered as having been inserted to increase the damages ; as where the declaration charges the defendant with having entered the plaintiff’s close, and cut down his trees, not specifying their number, kind, or value ; — if, on the contrary, it will so entitle him, it must then be regarded as a distinct injury for which the plaintiff claims redress, be*41cause, with what other view, or for what other purpose, has he described it with such particularity ? ” — “ But on the other hand, suppose the matter will admit of only one mode of describing it, the defendant has no clew whereby he may ascertain whether the plaintiff means to insist upon it as a cause of action in itself, or as matter in aggravation, and he may therefore consider it as falling under the latter description, — a mode the most advantageous to himself; — and if by so doing he mistakes the plaintiff’s meaning, the latter has it in his power to set him right, by new assigning.”
These remarks accord, we think, with the principles of the common law and of common sense, and the doctrine advanced is well calculated to promote the cause of common justice.
We are not aware that any objection is made to the declaration, because it does not describe the personal injury with sufficient particularity ; and there is no question as to the necessity of any new assignment, if there is any such want of sufficient particularity, because the trial was on the general issue.
JVeto trial granted.