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Walter Martin Au?lit 1803

against Martiu

Daniel Bradley, Bildad Beach and Nabby Beach, Bradley &0thers. Administrators of Elnathan Beach, late Sheriff

of Onondaga. Debt will not

THIS was an action of debt against the administrators of lie agalust the the sheriff of Onondaga for an escape in the life time of their of a theriff, for intestate. an escape in the Tu life time o: The defendant put in a general demurrer to the declatheir inteltate. ration.

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 persona.” 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.t 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 i Com. Di.. title administration B. 14 and the authorities there, to prove

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that when the ground of complaint rested on tort or mis- ALBANY,

August 1803. Feazance, there was a remedy against the administrators.*

Per curiam. The law has been settled, both from the time of Dyer and Fitzherbert, as stated by the counsel for Bradley and o

thirs. the defendant, judgment must therefore be in favor of the demurter.

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punon quashing an

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The People against Cornelius Shaw.
ON certiorari to a conviction for forcible entry and de-

An indicte tainer before the justices in Renselaer County. The return ment for forci. to the writ was

ble entry and

detainer, must “ Renselaer County 2 AN inquisition of the people of state a seisin in

the prosecutor State of New York, Š the state of New-York taken at at the time of « Hoasick in the county of Renselaer on the twenty fourth also shew'an

entry by the <day of March in the year of our Lord one thousand eight defendant. To « hundred and one and in the 25th year of the Indepen« dence of the United States of America by the oaths of in sicement it

must appear “ Daniel &c. good and lawful men of the said county be- that the party « fore John Cumstock esquire one of the justices assigned indictment.

and This court may « to keep the peace in the said county and also to hear and « determine divers felonies trespasses and other misde- cution, " 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 « appartenances 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

There is not any such authority. The reference alluded to must be that citing Dyer 14. a. in marg. but it docs not warrans chc poGtion.

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“ 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
w the statute in such case made and provided; we the jurors
" aforesaid upon the evidence given declare the aforesaidi
“ 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.

Cornelius Shaw, . Supreme Courty ad şctm

) The People. AND the said Cornelius by Walter Wood his attorney o 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 indiate « 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. .

“ 28. 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 6 were had before the said justice or any judgment given o by him, which could warrant the issuing of the writ of “ restitution.

« 6th. Because it does not appear by the said indi&tment« the seisin of the said Samuel Millerman continued until « the time of the alleged force.


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7h. Because it is not stated in the said indiatment in a whæ mame, or at what time this defendant entered on *the said premises, or that he entered at all.

sth. Because the said indictment is repugnant and pants form."

Emmott, for the above reasons, moved to quash the indickment, 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 seisid of the prosecutor continued to, and at the time of the forcible entry, whereas it was only stated he was e long since seised." 4 Com. Di. Title Porcible Entry. D. 3. D. 4. The seventh exception is fatal on the authority of ? Hawk. 42. bi Iv€. 64. . 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 shewni.

Foot contra. Two objections may be made to this mo tion. 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 authon sity for this position, but it may be supported on general principles; where proceedings are removed and a returni 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 traversé, 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 magisbates, complaints of this kind must necessarily be before mach as are not acquainted with forms, and therefore the court will not insist on a rigid adherence to them.


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· 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. i. .. IN this cause, a motion is made to quash an indi&tment 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 fees 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 miessuage and freehold did without law detain, 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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