
    The People against Shaw.
    An indictment for forcible entry and detainer, must state a seisin in the prosecutor at the time of the entry, and also show an entry by tho defendant. To entitle to costs on quashing an indictment, it must appear that the party traversed the indictment. This court may grant re-restitution.
    The defendant was indicted in the court below for a forcible entry and detainer, and convicted.
    A writ of restitution having issued, the proceedings were brought up by certiorari.
    
    
      The indictment stated, “ that Samuel Millerman, of the town of Hoasick, in the county of Bensselaer, 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 appurtenances in Hoasick, in the county aforesaid, and Cornelius Shaw of the said town of Hoasick, and county aforesaid, laborer, 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 freehold 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, *did keep out, [*126] 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.”
    
      Emott
    
    now moved to quash the indictment, and for a writ of restitution. He took several exceptions to the indictment, but insisted only on the sixth and seventh, which were,
    6th. That it did not appear that the seisin of the said Samuel Millerman continued until the time of the alleged force.
    *7th. That it was not stated in what manner, [*127] or at what time, the defendant entered on the premises, or that he entered at all.”
    
      He said, it was indispensable to show that the seisin of the prosecutor continued to, and at the time of, the forcible entry; whereas it was only stated he was “ long sinceseised.” 4 Com. Dig. tit. Forcible Entry, D. 3. D. 4. The seventh exception is fatal on the authority of 1 Hawk, 42. b. 1, c. 64, s. 40, for it must be made to appear in what time the defendant entered, or at least that he did enter, neither of which are shown.
    
      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 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.
    
      *Emott, in reply.
    The practice now adopted is hat 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 control. 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.
    
      
      
        а) The indictment should have stated here “ being so seised, one.” &c.
    
    
      
       Here an entry should have been stated. “ The said messuage with the appurtenances situate in the town of Hoasick aforesaid, with force and arma, and with strong hand, unlawfully did enter, and the said S. M. from the peaceable possession of the said messuage with the appurtenances then and there, with force and arms, and with strong hand, unlawfully did expel anf put Out,” &c. See Rex v. Storr, 3 Burr. 1698.
    
   Lewis, Ch. J.

delivered the opinion of the court, 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, 562, 566, Oro. Jac. 214. [*129] Sir Nicholas Poynt’s Case. Ibid. 639. Bridge’s 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 Ent. and Det. E. or vol. 2, 562, 566 ; Cro. Jac. 19, 20.151. 1 Hawk. c. 64. s. 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 Bac. For. But. and Det. letter G-. p. 565.

I am, therefore, of opinion, the motion be granted. It was decided in this court in the case of Beebe and others ads. The People (Jan. term, 1802,) 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 is not within any of the statute provisions for costs, and none are recoverable. The statute (1 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 a side, and a writ of re-restitution awarded, without costs on either side.

Motion granted, without costs. 
      
       But had a seisin of the prosecutor, at the time of entry, been alleged, even by implication, it would have been sufficient. Wroth and Capel’s Case, 3 Leon. 102, 4 Leon. 191. As if the indictment had stated that the defendant “entered, expelled and disseised” the prosecutor. Ubi sup. Though where it only set forth the entry, and that the defendants held out the prose» cutor “disseised, expelled and ejected,” the indictment was quashed, be cause the expulsion, &c., were not positively stated. The King v. Dorny, Salk. 260. A seisin must be shown though the entry be on a lessee, in which case it is stated as on the freehold of B. in the possession of A The Queen v. Taylor, 7 Mod. 128. An entry on a “ tenement ” is too uncertain. Wroth and Chapel's Case, ubi sup. It must be stated to have been on the seisin of those having the legal estate. Therefore, in an indictment for a forcible entry, &c., on a church, it must show the entry, or the seisin of the legal trustees. The People v. Runkle, 8 Johns. Rep. 464. A certiorari is grantaWs, of course, without any special cause. The People v. Runkle, 8 Johns. Rep. 534.
      See also The People v. Runkle, 9 J. R. 147; The People v. Van Nostrand, 9 Wen. 51; The People v. Nelson, 13 J. R. 340; The People v. Reed, 11 Wen 57 The People v. Godfrey, 1 Hall, 240; The People v. King, 2 Cai. R. 98.
     
      
      
        а) A traverse to an indictment for a forcible entry and detainer need not be in writing, and the defendant may be found guilty of the detainer only. When the proceedings are under the 3d section of the act, the justice assesses the damages on ordering- restitution, and to give him cognizance it is not necessary that he go in person and view the force. The People v. Anthony, 4 Johns. Rep. 198. When he does, and under the first section records the force, the conviction upon his view is not traversable. Mather v. Hood. 8 Johns. Rep. 44. It is then his duty to impose.a fine; and a conviction, where the party is committed till a fine be paid without imposing one, is bad. The precedent in 3 Ld. Raym. 360, is on this account faulty. It is corrected in 2 Burn’s Just.. 351, but see a good form in Mather v. Hood, vbi sup.
      
      See Fitch v. The People, 16 J. R. 141.
     
      
      
        Brooks v. Hunt, 3 Caines’ Rep. 128; Jackson v. Woodworth lb, 136.
     