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$61,2,6. Cro. Ja. 214. Sir Nicholas Poynt's case. Do. 639 Bridges case.

2. It does not state any entry peaceable, or forcible by defendant, which must be stated; for without an entry, it does not appear but the party was in possession a sufficient length of time to justify his detaining by force. Bacon tit. Forcible En. and Det. E; or vol. 2. 562, 6. Cro. Ja. 19. 20. 151.-1 Hawk. c. 64. sec. 40.

From the general discretionary power this court has in these cases, they may set a restitution aside, and award a re-restitution (whenever it shall appear that restitution hath been illegally awarded) either for insufficiency, or defect in the indictment, or other cause 2 Ba. For. Ent. and Det. letter G, page 565.

I am therefore of opinion the motion be granted. It was decided in this court in the case of Beebe and others, ad. sctm. Tbe People,* that if the indictment be bad, re-restitution must follow of course, and in that case the indictment was quashed, and re-restitution awarded. But this case is not within any of the statute provisions for costs, and none are recoverable. The statute. (1 vol. Rev. laws 104) gives costs only when the party indicted traverses the indictment and is convicted; and no traverse is returned, or stated in the present case.

The judgment of the court is, that the indictment and proceedings be set aside, and a writ of re-restitution awarda ed, without costs on either side.

Robert Campbell against Timothy Munger and

others. THIS was a motion for judgment as in case of nonsuit for If several ac

tions, turning not proceeding to trial. The affidavit, on which it was on the same grounded, stated; that issue was joined in January term .cd for trial,

and on the 1802; that the cause was duly noticed for the circuit in the

hearing of the

and see noticed again same year; that it was not then tried, and was noticed again

firit, the judge

direct a nonfor the circuit in May last, when it was not brought on, suit, exception

to which is tatho' it was one of the oldest issues on the calendar, and no ken by the

counsel of the countermand of trial had been given. Van Antwerp re

plaintiff, he sisted the application, on a deposition made by himself, ad- thall not be li

able to judge • January term, 1802

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ALBANY, mitting the notice for the last circuit, but setting forth also, August 1893.

that this cause, as well as another at the suit of one Elijah Campbell

Montgomery against the same defendants were actions of Munger. trespass quare clausum fregit, involving the same question

and same defence; that on the trial of the said cause, Elijah case of nonsuit for not pro- Montgomery became nonsuit at the direction of his honor ceeding to trial, on the other

Mr. Justice Kent, to which direction an exception was

then taken, and, by consent of the defendant's attorney, ulate, and the the making up of the case was postponed till this term; the event of the that it was understood and agreed, between the deponent,

and the defendant's attorney, that the decision in one of the
causes should be conclusive in the others ;. and thereon,
shortly after the trial, so as above said to have been had in
the other cause, the witnesses for both parties were dis-
missed and that it was very doubtful whether a trial in this
present action could have been had.
Per curiam, delivered by Livingston, justice.

This is a motion for a nonsuit, for not proceeding to
trial at the last circuit in Saratoga. It appears that this,
as well as another action of Elijah Montgomery, against
the same defendants, was noticed for trial at that circuit;
that they were all actions of quare clausum fregit, involving
the same questions and the same defence. The action of
Montgomery was tried, and the plaintiff nonsuited, by die
rection of Judge Kent. To hịs opinion an exception was
taken by the plaintiff's counsel. The plaintiff's attorney
upon this, thought it unnecessary, until the opinion given
by the Judge could be reviewed by this court, to bring on
the trial of this cause; and he swears that « it was under-
« stood and agreed; between the defendant's attorney and
«himself, that a decision in the cause tried should be con-
« clusive in the other, and that, thereupon, shortly after
" the trial, the witnesses of both parties were dismissed."

Without relying much on the agreement of the attornies, which was not in writing, the court think the plaintit has accounted satisfactorily for not bringing this cause to trial. He noticed it in good faith, and appears to have been prepared to try it, but finding the opinion of the Judge against him in another cause embracing the same questions, and depending on the same evidence, it would have been tolly

in him to proceed in the others until the judgment of this ALBANY,

Auguft 1803. court could be had. We think therefore, that he ought sot so stipulate, and that the costs for not proceeding to

Campbell trial abide the event of the first.

Munger. The People against Amaziah Rust. THIS was an indictment against the defendant, for ex

An indictment tortion in his office, as an attorney of the court of common against an at

torney, for expleas in Montgomery county, A trial had taken place be

torting more fore the justices of the peace at the general sessions, the de

than his legal

fees, muft itatc fendant found guilty, and sentenced to a fine of one hun the sum due, &

the specific exdred dollars.

cess. The indictment was in these words. Montgomery county, ss.

BE it remembered, that at the general sessions of (L. S.) the peace of the people of the state of New York,

holden at the town of Johnstown, in and for the said county of Montgomery, on Saturday the fourteenth day of February, in the year of our Lord one thousand eight hundred and one, before Abraham Romegn, David Cady, and Robert M-Farlan Esquires, and others, justices of the said people in the county of Montgomery aforesaid, and also assigned to hear and determine divers felonies, trespasses and other misdemeanors committed and done in the said county, upon the path of, &c, good and lawful men of the county aforesaid, then and there sworn and charged to enquire for the said people of the said state, for the body of the said county, it is presented in manner and form as followeth, that is to say,

Montgomery county, ss. The jurors for the people of the state of New-York, and for the body of the county of Montgomery, being duly sworn and charged upon their oaths, present, That Amaziah Rust, late of the town of Johnstown, in the said county attorney at law, on the first day of June, in the year of our Lord one thousand seven hundred and ninety-eight, was, and still is, and has ever since been, an attorney at law of the court of common pleas in and for the said county of Montgomery, and that the said Amaziah Rust, so being one of the attornies aforesaid, on the twelfth day of February

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ALBANY, in the year of our Lord one thousand seven hundred and August 1803.

☺ ninety-nine, obtained a judgment in the said court, in favor of

one Ichabod Roberts, plaintiff, against Alexander Campbell • Ruit.

and John Hamilton, junior, defendants. And the jurors aforesaid, upon their oaths aforesaid, do further present, That the said Amaziah Rust, being such attorney as aforesaid, and prosecuting such suit for the said plaintiff, as his attorney, not regarding the statutes and laws in such case made and provided, but unlawfully and extorsively, on the sixth day of May in the year of our Lord one thousand seven hundred and ninety-nine, at Johnstown aforesaid, in the county aforesaid, did exact, demand, extort and receive from the said Alexander Campbell, one of the defendants in the said cause, the sum of Eleven Dollars over and above the fees usually paid for such like services, and due in the suit aforesaid, and more than was legally due to the said Amaziah Rust and the other officers and ministers of the said court for their respective services in the said suit, contrary to the statute in such case made and provided, and against the peace of the said people of the said state, and their dignity. Whereupon the sheriff of the said county of Montgomery is commanded that he cause the said Amaziah Rust to come and answer, &c. And afterwards, to wit, at the same general sessions of the peace of the said people, holden at Johnstown aforesaid, in and for the county aforesaid, on the said fourteenth day of February in the year of our Lord one thousand eight hundred and one aforesaid, before the aforesaid justices of the said people, and others their fellows aforesaid, cometh the said Amaziah Rust, in his own proper person, and having heard the said indictment read, the said Amaziah Rust saith he is not guilty thereof, and concerning thereof he putteth himself upon the county, &c. And George Metcalfe, district attorney for the county aforesaid, who prosecutes for the said people of the said state in this behalf, doth the like. Therefore let a jury thereupon come before the justices of the said people of the said state, at the next general sessions of the peace to be holden at the town of Johnstown aforesaid, in and for the said county of Montgomery, on the fourteenth day of October in the year of our Lord one thousand eight hundred and one aforesaid, of twelve free

Rutt.

and lawful men of the said county, each of whom shall ALBANY,

August 1803 have in his own name or right, or in trust for him, or in his wife's right, a freehold in lands, 'messuages or tenements, 1

The People or of rents in fee or for life, of the value of sixty, pounds free from all reprises, debts, demands or incumbrances whatsoever, by whom the truth of the matter may be the better known, and who have no affinity to the said Amaziah Rust, to recognize upon their oath, if the said Amaziah Rust be guilty of the premises aforesaid or not, because as well the said George Metcalfe, who prosecutes for the said people of the said state, in this behalf, as the said Amaziah Rust, have put themselves upon that jury, the same day is given as well to the said George Metcalfe, who prosecutes for the said people of the said state, as to the said Amaziah Rust. · At which next general sessions of the peace, holden at the town of Johnstown aforesaid, in and for the said county of Montgomery, on Wednesday the fourteenth day of October in the year of our Lord one thousand eight hundred and one aforesaid, before Simon Veeder, John M-Arthur and John T. Visscher, esquires, and other justices of the said people of the said state, in and for the county of Montgomery also assigned, and cometh as well the said George Metcalfe, who prosecutes for the said people of the said state, in this behalf, as the said Amaziah Rust, in his own proper person, and the said jurors of the said jury, by James Hildreth, esquire, sheriff of the said county of Montgomery, for this purpose impannelled and returned, to' wit. &c. who being called come, who being chosen, tried, and sworn to speak the truth of and upon the premises in the indictment aforesaid above specified, do say upon their oath, that the said Amaziah Rust is guilty of the premises aforesaid, in the indictment aforesaid above specified, in manner and form as by the indictment aforesaid is supposed against him. Whereupon all and singular the premises being seen, and by the court here fully understood, it is considered by the court here, that the said Amaziah Rust pay to the people of the state of New York, one hundred dollars for his fine, by the court here upon him Jaid, for and by occasion of the offence and extortion aforem said, whereof he is in the form aforesaid convicted, and

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