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. "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. 7th. Because it is not stated in the said indictment in what manner, or at what time this defendant entered on "the said premises, or that he entered at all. «8th. 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, independent 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. 1. c. 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 authority 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 transaction, 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. $ ALBANY, August 1803. The People V. Shaw. ALBANY, August 1803. v, Shaw. Emmott in reply. The practice now adopted, is that of every day both in this, and the English courts. Because The People 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. 109. 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. 1. 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 Cunstock, Esquire. The indictment states that Samuel Millerman " long since" was lawfully and peaceably seised, in his demeșne as of fee, of a dwelling house &c. in Hoasick, and that the defenḍant on the 14th of the same mouth, with strong hand and armed force, the said messuage 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. 561, 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 Em. and Det. E; or vol. 2. 562, 6. Cto: 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 pre sent case. The judgment of the court is, that the indictment and proceedings be set aside, and a writ of re-restitution awardedy without costs on either side. Robert Campbell against Timothy Munger and others. ALBANY, Auguft 1803 The People V. Shaw. tions, turning on the fame point, be no and on the hearing of the firit, the judge direct a non THIS was a motion for judgment as in case of nonsuit for If feveral acnot proceeding to trial. The affidavit, on which it was grounded, stated, that issue was joined in January term tied for trial, 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 terni, 1802, fuit, exception to which is taken by the counsel of the plaintiff, be hall not be li able to judg ment, as in 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 |