
    John C. Clements vs. Esther Clinton.
    In Error.
    
    Twenty jurors are to be summoned in proceedings before justices of the peace? for forcible entries and detainers,* but twelve, or any number between that and twenty, will be sufficient to try the issue.
    The description of the premises alleged to be forcibly entered and detained, must have such certainty, that the jury summoned, may know where to meet, and the sheriff know of what he is to give restitution; — *the plaintiff must also show what estate or interest he has in the land.
    It must appear bythe sheriff’s return when the summons was executed on the deien-dant, so that it may appear he had six days’ previous notice; without which, no jury could be sworn.
    If the proceedings be taken to the circuit court by certiorari, it is not indispensably necessary, that a motion to quash them should be entered at the return term — it may be made whenever the cause is regularly called upon the docket
    This was a suit brought by Clements, against the defendant, by virtue of the provisions of tbe act of 1821, ch. 14, for a forcible entry and detainer. The premises alleged to have been forcibly entered, and unlawfully detained, are described in the petition to the justice, as follows: “a certain tract of land, situate and lying in Bedford county, on the waters of Wilson’s creek, belonging to myself (said Clements,) and the heirs of David Marchant — it being a part of an occupant tract, purchased by said Marchant and James Clinton.” In the summons or -warrant, they are thus described: “a forcible entry and detainer, made by said Esther Clinton into the messuage, or upon the lands of said John C. Clements, in the county of Bedford, aforesaid:” and then proceeded to summon the defendant to appear at the house formerly tbe residence of David Marchant, deceased, on the 26th of January, 1825 — was received by the sheriff to execute, upon tbe 17th day of January, 1825, and was returned by him executed, as follows: “I have summoned the said Esther Clinton to appear before Allen Perry, and other justices, &c., according as I am commanded, &c.,” without stating at what time he summoned her.
    A jury of twenty men were summoned by the sheriff to attend upon the premises, who all attended at the time and place; from which number twelve only were impannelled and sworn to try the matter in dispute.
    
      The case was tried on the 26th of January, 1825, before Allen Perry, Abraham Byler and John Maxwell, esqrs., and a verdict was found for the plaintiff; — whereupon a judgment, though very informal, was entered, and a writ of restitution issued by the justices, before whom the trial was had, on the 27th of January, 1825; and also a fieri facias for the costs, which first was executed, but it does not appear when.
    The defendant obtained a certiorari, and removed the proceedings into the circuit court for said county of Bed-ford, where it was continued from term to term, until June term, 1826, when a motion was made to quash the proceedings had before the justices. No such motion was made at the return term. This motion was sustained by the court, and the proceedings quashed; and a writ of re-restitution ordered to issue; whereupon the plaintiff appealed in error to this court.
    
      O. B. Hayes for the plaintiff in error.
    Balch, Grundy, Rucks and Anderson for the defendant in error.
   Peck, J.

delivered the opinion of the court — and, after stating the facts, thus proceeded.

When this suit was called for trial, the circuit judge quashed the proceedings, had before the justices, for irregularity, and ordered a writ of re-restitution.

From the judgment of the circuit court this writ of error is prosecuted.

First. As to the number of jurors empannelled before the justices. Twenty are to be summoned; but it does not, therefore, follow, that twenty must be empannelled. Twelve, or any number between that and twenty, may take the inquisition — at least twelve must agree in the finding, and sign the same.

Second. There must be certainty in the description of the place; the messuage or the lands must be described with .reasonable certainty, or how will the'jury know where to meet when summoned? or how can the officer know of what give restitution? In this case the description of the premises is wholly imperfect and vague. (3 Bacon Abr. 255-6.)

Third. The plaintiff’s estate, or interest in the land, must be shown. In this the proceedings are defective — it does not appear what estate or interest Clements, or the heirs of Marchant had in the lands, If any had been described. This is fatal to the proceedings. (Bacon Ab. forcible entry and detainer E; 2 Caines' Rep. 97, People vs. Ring.)

Fourth. The act requiring six days’ service of the summons on the defendant, and providing that no jury shall be sworn unless such notice be given, makes it indispensable that the day of summoning should be shown. In this the ■proceedings are defective — the day is not shown when the defendant was summoned.

Fifth. The writ of restitution issued the day after the trial. This is good cause for quashing the writ of restitution, By the act of 1322, ch. 35, the writ of restitution is suspended for twenty days. The issuance thereof, immediately after the inquisition taken, and executing it, was an unwarranted deprivation of possession. So, in like manner, to issue an execution for costs, within the time allowed for making application for writs of certiorari and superse-deas, was oppressive.

The defendant, Esther Clinton, having brought the cause to the circuit court for alleged errors in the proceedings, and praying the proceedings to be quashed, it is needless do inquire, whether the party instituting the suit, is entitled to a trial for the force and detainer. We are clearly of opinion, that not entering a motion to quash the proceedings at the return term, did not preclude the court from quashing, when the suit was regularly called upon the docket. The circuit court did right in quashing the whole of the proceedings. The judgment must be affirmed, and a writ of re-restitution issue to the sheriff of Bedford county, to restore Esther Clinton to the possession of the lands of which she was illegally dispossessed.

Judgment affirmed.  