$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. The 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 awarded, without costs on either side. Robert Campbell against Timothy Munger and others. THIS was a motion for judgment as in case of nonsuit for not proceeding to trial. The affidavit, on which it was grounded, stated; that issue was joined in January term 1802; that the cause was duly noticed for the circuit in the same year; that it was not then tried, and was noticed again for the circuit in May last, when it was not brought on, tho' it was one of the oldest issues on the calendar, and no countermand of trial had been given. Van Antwerp resisted the application, on a deposition made by himself, ad • January term, 1802. mitting the notice for the last circuit, but setting forth also, that this cause, as well as another at the suit of one Elijah Montgomery against the same defendants were actions of trespass quare clausum fregit, involving the same question and same defence; that on the trial of the said cause, Elijah Montgomery became nonsuit at the direction of his honor Mr. Justice Kent, to which direction an exception was then taken, and, by consent of the defendant's attorney, the making up of the case was postponed till this term; 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 dismissed 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 direction of Judge Kent. To his 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 plaintiff 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 folly in him to proceed in the others until the judgment of this court could be had. We think therefore, that he ought not to stipulate, and that the costs for not proceeding to trial abide the event of the first. The People against Amaziah Rust. THIS was an indictment against the defendant, for extortion in his office, as an attorney of the court of common pleas in Montgomery county. A trial had taken place before the justices of the peace at the general sessions, the defendant found guilty, and sentenced to a fine of one hundred dollars. 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 McFarlan 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 oath 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 ALBANY, August 1803. The People V. Ruft. in the year The People V. Ruft. 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, 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. laid, for and by occasion of the offence and extortion aforesaid, whereof he is in the form aforesaid convicted, and |