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Walter Martin

against

Daniel Bradley, Bildad Beach and Nabby Beach, Administrators of Elnathan Beach, late Sheriff of Onondaga.

THIS was an action of debt against the administrators of the sheriff of Onondaga for an escape in the life time of their intestate.

The defendant put in a general demurrer to the declaration.

Henry in support of the demurrer. The present question will give but little trouble to the court, for as it is debt for an escape against the administrators of a sheriff, it will be brought to a single point, whether this suit does not fall within the rule of "actio personalis moritur cum personâ." It is founded on a tort, arising ex delicto of the intestate. 3 Black. Com. 302 is express that it is not maintainable, because the right against the intestate is derived ex delicto, and therefore dies with the person. In the case of Hambly v. Trott Cowp. 375 Lord Mansfield in settling the meaning and extent of the rule now insisted on, specifies the action of escape against a sheriff, as one which, from its cause, dies with the person. It is an injury ex maleficio, from which the intestate derived no advantage to himself, and this is the principle on which his personal representative is not answerable. Ibid. 376. The same doctrine is to be found in Fitzh. N. B. 121 A. n. c. In Berwick v. Andrews 6 Mod. 126.* case 171. In Dyer 271. a.† the same principle is acknowledged, for it is there ruled, that debt for an escape will not lie against an heir. And in Whitacres v. Onelsey and others executors, it was held that it could not be supported against the warden of the fleet. From these authorities it is evident the action cannot be maintained.

Russel contra, merely referred the court to 1 Com. Di.. title administration B. 14 and the authorities there, to prove

It was not the point in queftion, but a dictum of Powell, J. which Holt faid he had known adjudged contrary. The law however is clearly as in Hambly v. Trott.

†That was against the heir of the gaoler.

Dyer, 322

that when the ground of complaint rested on tort or misfeazance, there was a remedy against the administrators.*

ALBANY, August 1803.

Martin

V.

thers.

Per curiam. The law has been settled, both from the time of Dyer and Fitzherbert, as stated by the counsel for Bradley and othe defendant, judgment must therefore be in favor of the demurrer.

The People against Cornelius Shaw.

ON certiorari to a conviction for forcible entry and detainer before the justices in Renselaer County. The return to the writ was

An indictment for forcible entry and detainer, muft

state a feifin in the profecutor at the time of the entry, and alfo fhew an defendant. To on quashing an infctment it that the party indictment.

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This court may grant re-reiti

"Renselaer County 7 AN inquisition of the people of State of New-York, the state of New-York taken at "Hoasick in the county of Renselaer on the twenty fourth "day of March in the year of our Lord one thousand eight ❝ hundred and one and in the 25th year of the Indepen"dence of the United States of America by the oaths of "Daniel &c. good and lawful men of the said county be"fore John Cumstock esquire one of the justices assigned "to keep the peace in the said county and also to hear and "determine divers felonies trespasses and other misde- tution, "meanors in the said county committed; who say upón "their oaths aforesaid that Samuel Millerman of the town "of Hoasick aforesaid yeoman long since lawfully and "peaceably was seised in his demesne as of fee of and in "one messuage consisting of a dwelling house with the appurtenances in Hoasick in the county aforesaid and "Cornelius Shaw of the said town of Hoasick and county "aforesaid labourer on the fourteenth day of instant March "at the said town of Hoasick and county aforesaid with "strong hand and armed force the said messuage or free"hold aforesaid did without law or right detain and him "the said Samuel Millerman thereof and with strong hand "and armed force so did keep out from the said messuage "with the appurtenances aforesaid from the said fourteenth "day of inst. March in this present year of our Lord one ❝ thousand eight hundred and one until the day of the taking "of this inquisition with like strong hand and armed force

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There is not any fuch authority. The reference alluded to must be that citing Dyer 14. a, in marg. but it does not warrant the position.

ALBANY, August 1803.

The people

V.

Shaw.

"did keep out and doth yet keep out to the great disturbance "of the peace of the people of this state and the form of "the statute in such case made and provided; we the jurors "aforesaid upon the evidence given declare the aforesaid "inquest taken to be true. Witness our hands &c.

A writ of restitution having issued on the conviction, and the proceedings being removed, the defendant filed the following exceptions.

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"AND the said Cornelius by Walter Wood his attorney says that the said indictment aforesaid and the record of "the said conviction now remaining in this court are wholly "insufficient and void and he therefore prays that the same "may be quashed and that he may be restored to the posses ❝sion of the messuage, with the appurtenances, which hath "been unjustly and contrary to the law of the land taken "from him, and for causes of exception to the said indict ❝ment and record of conviction he sets down and shews "the following:

"1st. Because it does not appear by the said record that "any complaint was exhibited to the said justice against "this defendant for a forcible entry or detainer.

"2d. Because it does not appear in what manner this "defendant had notice of the said proceedings or whether " he had any notice thereof.

"3d. Because it does not appear that this defendant was "allowed an opportunity to defend himself below on the "said charge.

"4th. Because it does not appear but that this defendant "appeared before the said justice and traversed the said "charge.

"5th. Because it does not appear that any proceedings "were had before the said justice or any judgment given by him, which could warrant the issuing of the writ of

"restitution.

"6th. Because it does not appear by the said indictment "the seisin of the said Samuel Millerman continued until "the time of the alleged force.

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7th. Because it is not stated in the said indiament in what manner, or at what time this defendant entered on "the said premises, or that he entered at all.

a sth. Because the said indictment is repugnant and ❝ wants form."

Emmott, for the above reasons, moved to quash the indictment, and that a writ of re-restitution issue. He said, in dependent of the variety of causes of exception shewn, had two only been urged, the proceedings would not be allowed to stand. It is indispensable to shew that the seisin of the prosecutor continued to, and at the time of the forcible entry, whereas it was only stated he was "long since seised.” 4 Com. Di. Title Forcible Entry. D. 3. D. 4. The seventh exception is fatal on the authority of 3 Hawk. 42. b. lve. 64. s. 40. for it must be made to appear in what manner and at what time the defendant entered, or at least that he did enter, neither of which are shewn.

Foot contra. Two objections may be made to this motion. First, that as it comes before the court on certiorari, errors ought to have been assigned; the motion to quash is therefore improper. There is to be sure no express autho sity for this position, but it may be supported on general principles; where proceedings are removed and a return made, the practice is to assign errors. The first five exceptions are merely as to the form of the return. For that of a justice of the peace, there is none. He sends up all the proceedings before him. On examination, the court will see there must necessarily have been a complaint, and that if there had been a traverse, it would have been in writing, as all the proceedings are sent up; if therefore it does not appear it could never have been taken. The only ground is that by the charge in the indictment it does not appear when the forcible entry took place. The entry is not material, the detainer is the crime; the statute is against either forcible entry or detainer, therefore unnecessary to state more than the detaining. From the nature of the fransaction, and the authority being given to the magistrates, complaints of this kind must necessarily be before such as are not acquainted with forms, and therefore the court will not insist on a rigid adherence to them.

S

ALBANY,
Auguft 1803.

The People

V. Shaw.

ALBANY, August 1803.

The People v, Shaw.

Emmott in reply. The practice now adopted, is that of every day both in this, and the English courts. Because the authority in cases of this sort is given to magistrates, it is contended that no kind of forms are to be observed: the power is of a dangerous nature, and in a degree gives a right to try titles to land: this court will therefore keep it under strict controul. The record should therefore set forth the complaint duly exhibited according to the statute. 1 Rev. Laws. 102. and also the regular notice ordained, ibid. 103. Nor does it appear that any judgment has been given on the conviction. But the most important fact is totally omitted; the entry by force when the seisin was in Millerman. This ought to have fully appeared, whereas his seisin is said to have been "long since," and might have been discontinued. The statute is particularly framed against forcible, entries, the detaining is only a continuation of the crime of forcible entry; for if the entry, was by right, and peaceably, the defendant might be entitled to detain by force.

LEWIS C. J. delivered the opinion of the court.

IN this cause, a motion is made to quash an indictment of forcible entry and detainer, found in Rensselaer county on the 24th of March 1801, before John Cumstock, Esquire. The indictment states that Samuel Millerman " long since" was lawfully and peaceably seised, in his demesne as of fee, of a dwelling house &c. in Hoasick, and that the defendant on the 14th of the same month, with strong hand and armed force, the said messuage and freehold did without law de tain, and keep out the said Samuel from the said 14th of March until the day &c. and still doth &c.

The return of the justice, to the writ of certiorari, states the bill of indictment; the notice served on the defendant, the warrant to the sheriff for summoning a jury to inquire of the detainer &c. the writ of restitution issued, and there stops.

There are two substantial and incurable defects in this indictment.

1. It doth not state that the prosecutor was seised at the time &c. not even by implication, and this is necessary to be stated. Bacon tit. Forcible Entry and Detainer, E. vol. 2. p.

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