Сн. 204. person entered § 13. 3d. But if the indictment state the upon was seized in his demesne as of fee, but saying not when, and if it state he was so seized, and then that he was possessed 1 Dallas, 68, thereof as aforesaid, the court will not for these matters arrest Respublica v. Shryber & al. the judgmeut. 1 Dallas, 68. 1 Dallas, 354. -2 Salk. 587,588. 8 Johns. R. 464, The People v. Runkel. 2 Johns. Cas. 4 Johns. R. 198, The lat. Corless 14. 4th. The wife of the prosecutor is a witness to prove the force, but the force only. 15. 5th. But the proceedings were quashed, because the indictment only stated the party was possessed, but laid no term or estate. An inquisition for a forcible entry was quashed, but restitution denied, as there was an outstanding lease, and to travers the inquisition is a supersedeas to restitution. § 16. Eighth. In New York, 11 Sess. c. 6, an act was passed to prevent forcible entries and detainers. On this act there appears to have been several indictments. Among others, an indictment for the forcible entry and detainer of a church &c.; and held, the trustees of it, as such, could only be constructively possessed of it; that the possession of the key of it by one of them was prima facie evidence of possession, but not to exclude an inquiry who were in fact legal trustees at the time of the entry. 17. By this act there may be an indictment before two justices, and this may be removed by certiorari of course to the Supreme Court. As in this case in which it was decided, that if the deft. did not appear and plead, the prosecutor should have had him called to plead or abide by his former plea &c. And in which also, it was decided, that the landlord might be let in to defend in an action of forcible entry and detainer, as well as in ejectment. § 18. Held, a justice proceeding on this statute need not previously go in person to view and record the force, nor need People ex re- the traverse to an indictment for a forcible entry and detainer v. Anthony.be in writing; that on such an indictment the jury may find Act 11th sess. the deft. guilty of the detainer only; that a fine is required to The grand be imposed on the offender only when there is a conviction on jury found an view according to the act. Cited 1 Phil. Evid. 164. c. 6, s. 2. indictment, and the petit jury tried it, 19. The record of conviction by a justice on this act is not traversable. And if it shews he had jurisdiction and proceeded regularly, it is conclusive and a good bar to any action brought against the justice, copied merely from 15 Rich. II. c. 2; hence, the English decisions apply. 4 Johns. R. 498. Various forms of indictments for forcible entry; see Crown. vol. 1, 101. C. Comp. 361 to 372. both sum- 2 Ld. Raym. 1514-2 § 20. Ninth. As there are many statutes in England on Stra. 794-9 Johns. R. 147, The People v. Runkel-Is enough the parties and injury are stated with sufficient certainty to ascertain them and to award restitution. this subject variously worded, not generally adopted here, the CH. 204. Art. 12. 559. 21. Tenth. If one have a right of entry and enter peace- 2 Bac. Abr. ably, and holds by force, quære, if the justices can remove him, though he has been in possession less than three years; they are not judges of the right, but only of the possession. "As if a man gets peaceably into his own, it seems he may defend it by force." And where the jury have found as to the entry ignoramus, and as to the detainer vera billa, the indictment has been quashed, and the restitution granted upon it set aside, and a restitution awarded. In the complaint to the 1 Pen. 108, justice on the statute, the plt's estate in the lands and tene- Baker. ments entered upon forcibly must be specified. 22. Eleventh. This question examined, namely, A has a right of entry, and enters peaceably, but holds over by a strong hand; can the justices, on the statute, remove him? Clearly not, if his right of possession continues; because having lawfully gained possession, so long as it continues lawful he must have a right to defend it, and he that attempts to remove him is the wrongdoer, as but one can have the right of possession at the same time, unless joint-tenants &c. But though A thus gains a rightful possession, as where he rightfully and peaceably enters, as lessee at will, or for years, or one as guardian &c.; his rightful possession being for a time only, after that is elapsed, this possession ceases, and he that would remove him has a right of entry and of possession accrued; as the lessor after the term of his lessee is expired; or as the mortgagee when he elects actually to enter and take possession; as the mortgagor, after he has fully paid the debt, and the mortgagee, who legally entered, has no right longer to keep possession, and other like cases, and he in possession detains with a strong hand. It is said above the justices cannot inquire into his title, but only his possession. 23. This question is to be decided on a fair construction of onr statute of June 30, 1784. That act, as Ch. 132, a. 6, provides, the justices, by a jury, inquire into unlawful and forcible entry and detainer, the same with a strong hand. So far there are three points of inquiry: 1. Was the entry law. ful: 2. Was it forcible: 3. Does he detain with a strong Van Aulen v. CH. 204. hand. If the facts be found in the affirmative, there must be Art. 12. restitution. Again, this act provides, that the two justices, by a jury, inquire also against those who, having a lawful and peaceable entry, unlawfully and by force hold the same, and, when found, to make restitution to the complainant. This clause goes expressly on the ground, that though the deft. had a lawful and peaceable entry, yet if he holds unlawfully, and by force, he is removable. This act applies the words, strong hand, to any entry, to expelling, or detaining. Thus, if it be found, the lands or tenements," after a lawful entry, are held unlawfully, and with force and a strong hand," then restitution is to be made; and the proviso is, that this act shall not extend to "any person who hath had the occupation, or been in the quiet possession of any lands or tenements, by the space of three whole years together, next before, and whose estate therein is not ended or determined." The justices then inquire if his estate is ended. So by the act they inquire of an unlawful entry. So the jury, by the act, must find an unlawful entry, or an unlawful detainer, as well as force and a strong hand. The words of the act then are clear, that if the party unlawfully detain, with a strong hand, after his estate is ended, he may be removed; also, at common law, indicted; but it is the unlawful force and strong hand only that is indictable. Yet these words in the act construed literally, would carry us much further than the practice has gone. For instance, A mortgages lands to B and B enters and so has lawful entry and possession; A pays the whole debt, whereby B's estate in the land is ended; A demands the land of B, and he refuses, and with a strong hand, to give it up to A; hence he unlawfully detains it. This case seems to be within the words of the statute; yet no removal has been known on such grounds; and probably because it is obvious that this case, like many others, involves in it too much law and difficulty for such a court as that of two justices; and the usual consequence is, if an inadequate court be appointed to execute a statute, it usually is not executed at all, as has been the case nearly of this statute. In this case of detainer, though the justices ought not perhaps ever to inquire of the title, any more than in the case of entry, yet it is clear they must inquire into the right of possession, otherwise a man defending his lawful possession by force, as he may, would be liable to be removed from it; and it may also be clear that he who claims to have the possession given to him must have a right of entry; for if he, by his negligence or acts, has lost case. -Cro. this, he does not seem to bring himself within this summary process. On the whole it seems to be a fair construction of the statute, that if the complainant has a right of entry, and East's C. L. 245, Ford's Jam. 19 & 151, Ford's case. In Art. 12. the estate of the deft. is ended, and he detains unlawfully and СH. 204. with a strong hand, he may be removed on this statute. the English practice, indictment for forcible detainer states usually a peaceable entry. well's case, 24. Forcible entry &c. A justice, on his view, can on- 10 Johns. R. ly fine and imprison the party guilty of force, but cannot make 304, Shotrestitution but by a jury. As where on a complaint of George &c.-JusDepeyster against Shotwell & al., that he had entered D's tice's record. dwelling house, and expelled him, and held him out with a strong hand; the justice went to the house, and saw S. Briggs, with force, unlawfully, with strong hand, detain the messuage, and so he convicted him of the same. Briggs held the house under and for Shotwell. acts. A motion was made in the Supreme Court, that Isaac Cla- N. York act, son, George Depeyster, and William A. Thompson, show (Sess.11, c.6,) is a copy, vecause, by May 14, why Gilbert Shotwell and Samuel Briggs, ry nearly, of or either of them, should not be restored to the possession of a the English dwelling-house and farm, in Yonkers, wherefrom they, or one of them, was expelled. By several affidavits &c. read, it appeared there was no force or violence. Shotwell, October 12, 1812, purchased the estate at the sheriff's sale, as the property of Haskin, whose tenant Depeyster was, and he, on the sheriff's executing the deed, voluntarily gave up possession, and agreed, in writing afterwards, to stay one day, as tenant to Shotwell. October 18, D. moved away; and October 30, Briggs was put in possession by Shotwell, and remained till turned out, February 5, 1813. Possession was taken for Clayson, and continued, he claimed the estate. Held: 1. If a certiorari be issued to a justice to return his proceedings in case of forcible entry and detainer, and he dies before his return is made, the Supreme Court will hear and decide the case on motion and affidavit: 2. Proceedings under the statute of forcible entry and detainer, may be quashed in this court for irregularity, and restitution awarded to the aggrieved party, on motion and affidavits; where a justice on his own view, without any jury, ordered or permitted restitution of possession, held, to be irregular: 3. Where the justice acts on his own view he can only punish as above: 4. He cannot meddle with the possession, without the intervention of a jury: 5. Where his proceedings are quashed for irregularity, it is of course to order a restitution. We cannot, said the court, investigate the title on affidavits; "the only inquiry is, as to the force, and the regularity and equity of the proceedings." Spencer J. (dissenting ;) he doubted if the justice turned Briggs out, or did more than countenance Depeyster &c. in turning him out, and thought he, the justice, did not make restitution to Depeyster, and that Haskin had CH. 204. only a mere temporary interest in the estate, and that Clason Art. 13. was the owner of it. Many English cases were cited, most of which are cited in this work; also the King v. Stacy, 1 Sid. 287; the King v. Elwell, Stra. 794. New York cases; The People v. Shaw, 1 Caines' R. 125; Same v. King, 2 Caines' R. 98; 4 Johns. R. 198, above. Mass. Act, Jan. 29, 1795; & Virginia Acts of 1786. 4 Bl. Com. 144.--French Penal Code, Notes. It will be observed the law in New York, on this subject, is nearly the same as in Massachusetts, for a reason very common, these, as other States, have copied from the English laws. ART. 13. This going &c. armed is an offence against the public peace; no doubt was an offence at common law; but particularly punishable by 2 Ed. III. c. 3. And so by this statute, the Province law revised, this offence is also punishable. See this act cited, Ch. 201, a. 7. This offence is usually cognizable by a justice of the peace, if it amount not to a riot. The like offence is the riding &c. with naked scythes, and punishable in the same manner by the same act. The offence is in going or riding with dangerous weapons &c., to the terror of the people. ART. 14. Menacing letters sent. 1. This is another offence against the peace, when demanding money or other valuable thing, or threatening without a. 305 to 308. any demand, to kill or burn the house of any person. This offence was high treason, by 8 H. V. c. 6. 6 East, 126, Rex v. South erton. 2. This is an offence at common law to send menacing or threatening letters, demanding money, or threatening a prosecution, by a public officer, to recover statute penalties &c. for the purpose of obtaining money to stay the prosecution; but then it must be such a threat as a firm and prudent man may not be expected to resist. 3. In this case the letter threatened to put in motion a prosecution. An attorney sent the letter, dated August 23, 1803, to R. & W. Allen: "Sirs, I (the deft.) am applied to, to prosecute an information against you, for selling certain medicine without stamps. I have told the parties that all such informations must now be prosecuted by the public officer, and have advised them to let me write you on the subject, and hear what you have to say. If I can be of any service to you in stopping them, you will write to me accordingly, and I will get the best terms I can." The information charged that he wrote this letter with intent to extort and procure money from said Allens, for the purpose of preventing said prosecution, in his letter alleged to be intended against them, from being commenced, to their great damage, and against the peace; there were other counts to the number of fourteen, none of them concluded against the form of the statute. After convic |