
    In the Matter of Gilbert Shotwell.
    ALBANY,
    August, 1813.
    VfiiCTM wtiorari is issued to a justice to retm-n^tiy cas^of‘>rc¿bh entry and detainer, and thejusticedies tnn/Ts^/adej hea/and de«¡de the case, affidavits. “
    underThe sta“teofjóméfe tainer, may be quashed in this court, for and restitution awarded to the *®Í3§tieved party, on motion
    tice, u¡ion his own view, without any a jAry^ordere ted° a restitutjon of posses-held to be i‘r-mere the justice acts on ins own view, be can only punish the party guilty of the force, by fine and imprisonment; the justice cannot meddle with the possession, withouf the intervention of a jury.
    Where the proceedings of the justice are quashed for irregularity, it is of course to order a re* restitution.
    SLOSSON, at the last term, (the 6th Mar/,) moved that Isaac , Clcison, George Depeyster, and William A* Thompson3 show cause, by the 14th Way, why Gilbert Shotwell and Samuel P either of them, should not be restored to the possession of a dwelling-house and farm, in Yonkers, wherefrom they • „ , or one or them was expelled on the 5th Bebruary last.
    He read a paper purporting to be the record of E. Williams, the peace, stating that on the 6th February last, George Depeyster complained to him that Gilbert Shotwell had entered his dwelling-house, in Yonkers, and expelled him, and holds from him strong hand; that the justice thereupon went to the said messuage and saw Samuel Briggs, with force, unlawfully, with strong hand, detain the messuage, and so he convicted him of ,7 0 same, &C.
    Several affidavits were also read in favour of ^ the application, The following are the principal facts stated in them: *
    P. J. Munroe stated, that as counsel of Shotwell, he issued a certiorari to remove the proceedings -before the justice into this com-t; that on the 24th April last he called on the iustice, who x J 7 was sick, and who agreed to draw a return to the certiorari, and showed the counsel the record above stated, as a return which he was prepai'ing; and said, that he saw no armed force; that after the said complaint to him against Shotwell, he went to the messuage, &c. and found George Depeyster and others at the place, engaged in removing the goods of Samuel Briggs, who occupied -file place, and who was absent; but his family was then in the house; that no force was used to obtain possession; that Briggs returned and said he would not deliver up possession, but used no force, an d the justice ordered him into custody; the justice saw no force, and no fine was imposed on Briggs. The justice consented that the counsel should draw a return according to the truth of the case, and the counsel made a memorandum to the return from the justice, stating that Depeyster and Thompson went to the house, before the justice, and began to remove the effects of Briggs; that Briggs returned and said he would not deliver up possession, , and was ordered into custody; and that this was the force, and none other. The justice died on the 30th April, without making a return.
    
      Briggs, in his affidavit, stated that in October, 1812, he was engaged by Shotmell to take charge of the dwelling-house and farm in question, formerly possessed by B. F. Haskin, and lately purchased by Shotmell at a sheriff’s sale. Briggs and his family took possession of the house and farm, the 30th October, in behalf of Shotmell, who had cattle, &c. on the farm; Briggs and his family remained in quiet possession until the 5th February, when he was expelled. He was arrested on that day, at the suit of Depeyster, for 3,000 dollars in trover, and went several miles to procure bail, (several persons offered having been refused,) and while he was gone, the ouster as above stated took place. On his return they were putting his furniture into the street, which he forbade, and the justice ordered Depeyster to take him into custody, Briggs delivered the keys of the house to the justice, arid Depeyster put Briggs into the street, who refused to hold the premises, as he was requested, under Clason. Depeyster and Thompson declared that they took possession for Clason; and one Thomas Woods was put into the house to keep possession for him. The justice, afterwards, told Briggs that the proceedings were illegal. No jury, sheriff, or'other officer was present. And Briggs denied that he ever held the place by force.
    
      Shotmell stated that he purchased the premises, at the sheriff’s sale, on the 12lh October, 1812, as the property of Haskin. That George Depeyster was the tenant of Haskin; that on the execution of the deed from the sheriff, Depeyster voluntarily gave up possession, and agreed, in writing, afterwards, to stay for one day, as tenant to Shotmell. Depeyster moved away on the 18th October, and on the 30th October Briggs was put in possession by 
      Shotwell, and remained until turned out, on the 5th February; an¿ that the forcible possession then taken, was for Isaac Clason, who still remains in possession.
    Qn the 15th May, when the motion came on to be argued, numerous affidavits were offered against the motion; and it was agreed, by the counsel on both sides, that all the affidavits, for and against the motion, should be submitted to the court with the authorities and remarks of the counsel, in order that the court might have time to examine and decide thereon, at the next term.
    Of the mass of facts contained in the affidavits, it is necessary, in reference to the opinion of the court, to add only the following : Depeyster deposed, that about the 15th October, 1812, Shotwell, accompanied by another person, came to the house of Depeyster, at Yonkers, and stated that Shotwell had purchased the premises at the sheriff’s sale, and asked Depeyster if he would immediately and peaceably leave them, to which Depeyster replied, that he would not leave them, until compelled by force, or due . course of law. Shotwell then declared his intention to turn him . out by force, and immediately took Depeyster by the shoulder and dragged him into the street; and that in that situation, on aqcount of his family, he entreated Shotwell to permit him to stay that night, which Shotwell consented to, only on condition that he would leave the premises peaceably the next day, and sign a paper to the effect, drawn up by Shotwell, which he signed, and left the premises the following day, See. That he apprehended personal violence from Shotwell, unless he left the premises.
    The affidavits of Thomas Wood, who assisted Depeyster, and of Caleb Stacy, who was tenant to Clason, stated that Depeyster and Wood went to the premises on the 5th February last, about one o’clock P. M. there being only two female^ then in the house, and after explaining the object of their coming, they proceeded to remove the furniture into the street, and that most of it was removed before the justice came, which was two hours after. Briggs and his wife returned home about an hour after the justice came. The conduct of the justice was variously stated in the affidavits. Stacy said the justice was a silent spectator, and gave no direction. Wood stated that the justice advised , the parties how to proceed, and that there was an amicable conversation between them, and that Briggs, on being asked by the justice if he meant to leave the premises peaceably, said he “ did aot wish to fly in the face of the lawthat the justice requested the persons present, in the name of the people, to remove Briggs off the premises; that Depeyster took him by the arm, and they went laughing, together, into the street, and returned again, and the justice told Depeyster that he ought to give the keys to Briggs again, and take him by the arm and walk into the street, which was done, when Briggs voluntarily redelivered the keys to Depeyster. Stacy deposed that he occupied the farm-house, &c. for near thirteen months, under Clason, pursuant to a written agreement or lease; that he took possession about the 12th March, 1812, and has since resided there within a few yards of the house in which Briggs lived, and from which he was removed, both houses being on the same farm, and within the same yard; that he used the same pump, barn, &c. with Briggs, and took care of the stock, and directed the labour and work done on the farm, pursuant to his agreement with Clason.
    
    
      Haskin stated that he had no title or interest in the premises, but that they belonged to Clason, who paid him a good and valuable consideration; but that at no time had he, Haskin, the fee-simple of the premises in dispute, but merely a temporary interest therein.
    
      Slosson and Wells, in support of the motion.
    1. To show that the court had cognisance of the case, they cited 1 Sid. 156. 207 1 Lev. 113. 1 Wm. Jones, 113. 170. 3 Salk. 170. 2 Salk. 450. 2. To show that a writ of rerestitution ought to be awarded, they eited the statute, (sess. 11. c. 6.) 12 Mod. 495. 516. 1 Vent. 308. 1 Sid. 156. 2 Caines’ Rep. 98. 1 Str. 794. 4 Johns. Rep. 198. Sayer’s Rep. 176. Hawk. P. C. 138. 3 Bac. Abr. 253. 255, 256. 260.
    
      T. A. Emmet, Burr and Thompson, contra.
    They cited. Jenk. Cent. 114. 132. Ld. Raym. 835. 1305. 1515. 2 Hawk. P. C. c. 29. s. 54. Salk. 479. 1 Lev. 113. 1 Sid. 70. 3 Caines’ Rep. 126. 2 Hawk. P. C. c. 27. s. 70.
   Per Curiam. (Spencer, J. dissenting.)

This case comes before the court on motion, on behalf of Gilbert Shoiwell, that Isaac Clason, George Depeyster, and William A. Thompson, show cause why the said Gilbert Shotwell and Samuel Briggs, or either ef them, should not be restored to the possession of a house and farm in Yonkers, in Westchester county, from which they or one 0f them was expelled on the 5th of last February.

The motion is grounded upon affidavits, and several affidavits have also been produced in opposition to the motion.

Without going into the facts at large, as detailed in the affidavits, it is sufficient to state that Briggs was ousted by order of a justice, on the complaint of George Depeyster of a forcible entry and detainer. That a certiorari issued to the justice to return the proceedings, and that he died before a return was made. It is then a matter of necessity that the court should decide the case upon affidavits; and it appears from the books that proceedings under the statutes of forcible entry and detainer, have frequently been quashed in the K. B. for irregularity, and restitution of the party aggrieved awarded, and that too upon motion and affidavits. (King v. Stacy, 1 Sid. 287. King v. Bengough, 3 Salk. 170. King v. Challenors, 1 Sid. 156. King v. Layton, 2 Salk. 450.)

The proceeding of the justice was clearly irregular and void, in permitting restitution, upon his own view, without an inquisition by jury. When the justice acts upon his own view only, he can punish the party guilty of the force, by fine and imprisonment} but he cannot meddle with the possession without the intervention of a jury. This is the plain meaning of the second and third sections of our statute on this subject, when taken and compared together; (Laws, sess. 11. c. 6. p. 102, 103.) and the English decisions on the statutes, of which ours is a copy, are expressly and decidedly to this effect. (King v. Challenors, 1 Sid. 156. 1 Vent. 308. 12 Mod. 495. Anon. 12 Mod. 516. King v. Brown.) As far as we can collect from the imperfect notes of the proceeding, as made by the justice, and from the affidavits which go to supply their deficiency, no proceeding could have been more irregular and unwarranted. There was not even a fine imposed upon the party, and which alone has been deemed a fatal omission. (King v. Elwell, Str. 794.) Nor, in fact, did there exist any thing like a forcible detainer, within the meaning of the law. The proceeding was lawless and violent. In quashing the proceeding, restitution is a matter of course. It is demanded in this case under the exercise of a sound discretion. We cannot investigate the title, upon affidavits. The only inquiry is as to the force, and the regularity and equity of the proceeding. (People v. Shaw, 1 Caines' Rep. 125. The People v. King, 2 Caines’ Rep. 98.)

• Borne of the affidavits in opposition to the motion seem to conhder the ouster of Briggs and his family as done by private authority, and not by the sanction of the justice. But as the justice attended on the complaint of the party principally concerned in effecting the ouster, and considered himself as acting under the? authority of the statute, and the parties were sheltering themselves at the same time under his sanction, they cannot now be heard.to say it was an act of private trespass, aiid to be redressed by private action. The act was done under the colour of the authority of the magistrate, and the honour of the law is concerned in affording the injured party the prompt and effectual redress which the lav/ has provided for such cases, under the superintending authority of this court.

We are, therefore, of opinion that the motion be granted, and a writ of re-restitution awarded.

Spencer, J. (dissenting.)

We are applied to for a writ of re-restitution, to put the applicant in possession of a house, Sec. whereof Samuel Briggs was dispossessed on the 5th of February last.

It appears that a certiorari has been issued to jEJ. Williams, a justice of the peace oí Westchester county, and that he died in April last, without having made any return. It appears also, that the justice delivered to Mr. Munro a paper to aid him in drawing up a return, which was intended for, and purports to be, a conviction of Briggs of a forcible detainer, but it sets no fine upon him, nor does it show that the justice ordered the possession of the house, See. to be delivered up; but from a memorandum made by Mr. Munro, on the paper, in the handwriting of the justice, and from his admissions to him, it appears, that on Briggs’s refusal to deliver up possession, he was ordered into custody ; and Mr. Munro states that the justice informed him, that when the goods of Briggs had been removed from the premises,1 the justice then ordered him to be enlarged.

In the case of The People v. Shaw, (1 Caines’ Rep. 129.) this court recognised the decision in The People v. Beebee and others, that if the indictment be bad, re-restitution must follow course; and in the case of The People v. King, (2 Caines’ Rep. 99.) the same principle was adopted. In the case of The People v. Shaw, the Chief Justice observed, that “ 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.” Now, from the paper ¿¡ejrverecL by the justice to Mr. Munro, or from any instructions given by the justice to him to prepare the return, we cannot presume that the justice ordered restitution; and admitting that the’ conviction, if it be considered such, be quashed, a re-restitution would not be the consequence; the paper purports merely the conviction of Briggs of a forcible detainer; it neither sets a fine nor awards restitution. The complainant, then, has not been devested of his possession by any judicial proceeding of the magistrate. Hawkins (b. 1. c. 64. s. 65.) lays down the law with accuracy, and the cases he refers to bear him out, that “ neither can a defendant, in any case whatsoever, ex rigore juris, demand a restitution, either upon quashing the indictment, or a verdict for him on a traverse thereof, See. for a power of granting a restitution is vested in the K. B. only by an equitable construction of the general words of the statutes, and is not expressly given by those statutes, and is never made use of by that court, but when, upon consideration of the whole circumstances of the case, the defendant shall appear to have some right to the tenements, the possession whereof he lost by the restitution granted to the prosecutor.”

The complainant, Shotwell, obtained possession of the house, &c. occupied by George Depeyster, in • October last, according to Depeyster’s affidavit, by force, and according to his own, by fraud, provided Depeyster was Isaac Clason’s tenant. Shot-well’s right to claim the premises was derived from a sale of them under a judgment against B. F. Haskin. Haskin swears that he never had the fee of the farm in him, and that he had but a short and temporary interest therein, and that Clason, on the 6th of February last, and for several months previous, as he believed, had a good title to the same, Clason swears that he claims the fee of the farm, having purchased and paid therefor a full consideration; that G. Depeyster and C. Stacy were his tenants under written leases, and had been several months in quiet possession thereof, until about the 1 fth of October last, when G. Shotwell entered thereon, without his knowledge or consent; that Stacy, the co-occupant, remained in possession, as his tenant. Caleb Stacy swears he has occupied the farm, house and premises under Isaac Clason for better than 13 months past, accorditig to written agreements; that he went on in March, 1812, and has ever since resided in a house on the said farm, within a few yards of the house in which Briggs resided, both of which houses are in the same yard; and that he used, in common with Depeyster, before his expulsion, the same garden, pump, barn, cattle, and farming utensils, and that he took care of the stock of the premises, and that the principal work and labour xvas under his directions. Lavinia Stacy and Silvanas Stacy confirm all the facts stated by Caleb Stacy.

With respect to the conduct of Justice Williams, on the 5th of February, there is great discordance in the affidavits for and against the motion. I think the weight of evidence is, that the justice illegally and unwarrantably lent his aid in inducing Briggs to surrender up the possession. But I am of opinion, that in the exercise of a sound and just discretion, we ought not to grant a re-restitution. The complainant himself, having originally become possessed by force or collusion with Depeysler, Clason’s tenant, comes with an ill grace to ask a restoration; it is impossible. to say, were we inclined to interfere, how far, and to what he ought to be restored. I think, that inasmuch as the justice never judicially awarded a writ of possession, nor pretended expressly to restore Depeysler to his possession, that we have no right to grant a restitution; and if we had, this case is presented with such accompanying circumstances, as not to call forth the exercise of ■the discretionary poxver with which we are armed.

Proceedings quashed an.d a xvrit of re-restitution awarded;  