
    Colt and another against Eves :
    IN ERROR.
    The amendments of the constitution of the United States were not intended to limit or controul the proceedings of the state courts.
    The provision in our city charters, that the jury shall be taken from the freemen of the city, and not from the body of the court, is not repugnant to the 21st section of the 1st article of the constitution of this state, declaring that the right of trial by jury shall remain inviolate.
    Where a duty is required by statute to be performed on a certain day, and the object contemplated by the legislature cannot otherwise be carried into effect, the time prescribed must be considered imperative; but if there is nothing indicating that the exact time is essential, it is to be considered aa directory.
    Therefore, where a city charter required, that a certain number of jurors should be chosen on the 1st Monday of July, and they were not chosen until the 8th of August, it was held, that this provision was directory, and a jury empannelled from the jurors so chosen, was a legal jury.
    Where A was chosen a juror, and his name put into the box and drawn from it, but by mistake of the sheriff, B was summoned, and the mistake being discovered, B was dismissed, and A summoned ; it was held, that A was a competent juror.
    Where a community of design is established, the acts of each of the parties and their declarations, at the time of prosecuting those acts, are evidence against each other.
    Therefore, where A, the plaintiff in an execution against D, and B, the officer who executed it, entered together the house in which C resided, with intent to remove C therefrom, by virtue of such process; it was held, that the declarations of B, acting under the direction of A* though not made in .d’s presence, were evidence against him.
    
      A instituted a summary process to obtain the possession of a leased tene. ment, under the statute for that purpose, by a complaint against D, dated the 24th of May, on which a citation was issued, and served on D, requiring his appearance on the 30th of May. The citation was served, but nothing further was done until the 30th of July, when a venire was issued, requiring the attendance of the jury on the 1st of August. The jury at. tended on the 2nd of Avgust, and found a verdict for A to recover possession. An execution was thereupon issued, purporting to be founded on a judgment rendered on the 2nd of August, directing the officer to cause A to become possessed of the premises, by putting out D and all others, and putting A into peaceable possession. In an action of trespass, brought by C, not holding under, or deriving title from, A or D, against A, and B* the officer who served the execution, for removing C and her effects, by virtue of such execution, it was held, I. that these proceedings were entirely irregular, and afforded no justification to A ; 2. that the clause in the execution requiring the officer to put out D and all others, was inoperative as against those not holding under, or deriving title from, A or D; and consequently, the officer, not acting under process, regular on its face, w-as not protected ; 3. that trespass was the proper remedy.
    
      New-Haven,
    
    July, 1837.
    This was an action of trespass vi et armis and de bonis asportatis, brought by Hannah Eves, against Anson T. Colt and Silas Mix, before the city court of the city of New-Haven. The defendants pleaded, severally, the general issue, with notice of special matter in justification. The cause was tried before that court, October term, 1836, when the plaintiff obtained a verdict against both the defendants. They then filed a bill of exceptions, and brought a writ of error, on which the points in this case arise.
    On the first Monday of July, 1834, the mayor, aldermen and common council men of the city of New-Haven chose 144 freemen of the city to serve as jurors, and put their names into the box provided for that purpose, as required by the charter, 
       On the first Monday of July, in the years 1835 and 1836, they omitted to perform this duty ; but did it, at a meeting called for that purpose, on the 8th of August, 1836. The persons last chosen were the same, with the exception of twelve, as those chosen for jurors in July, 1834 ; that number having, in the mean time, died or removed from the city. The names of all the jurors summoned to attend the court, had been duly drawn from the box, except that of Lewis Hotch-kiss, whose name had never been placed in the box, but he had been summoned by mistake, instead of Lucius Hotchkiss, who was one of the twelve. Lewis Hotchkiss was thereupon excused, by the court; and Lucius Hotchkiss was then, by order of the court, summoned to attend as a juror, and did attend. The defendants objected to the whole of the jurors drawn and summoned, on the ground that they were not chosen to be put in the jury-box on the first Monday of July, 1836 ; and on the ground that they were an unconstitutional jury, because they were all from the freemen of the city, and not from the body of the county ; and on the ground of the mistake of the city sheriff in summoning, in the firát instance, Lewis Hotchkiss, instead of Lucius Hotchkiss. The court over-ruled these objections, and admitted the jurors thus drawn, summoned and appearing, to be empannelled and sworn the cause.
    On the trial, the plaintiff introduced evidence to prove, and claimed that she had proved, all the facts alleged in the declaration ; and particularly, that on the evening of the 2nd of August, 1836, and on the morning of the following day, while the plaintiff was in the quiet and peaceable possession of a part of the Northerly half of a dwelling-house in said city, where she had resided, with a Mrs. Collins, since the 30th of May, preceding, the defendants entered upon the premises together, in a forcible manner, and, under colour of executing a writ of execution, purporting to have been issued by a justice of the peace, upon a summary process in favour of the defendant Mix, against one Samuel B. Durand, and committed, in concert with each other, the acts complained of in the declaration. It was proved, that the defendant Colt, in forcibly removing the plaintiff and her furniture from her residence, under such process, acted by the orders and directions of the defendant Mix, who remained upon the premises with him, on the night when the forcible entry was made, and went away with him, when he left the premises, and returned the next morning, and remained at the house until the plaintiff and her furniture were removed. There was no evidence to prove, nor was it claimed, that Colt used any more force than was necessary for the removal of the plaintiff and her effects, as directed by Mix; or that Mix ever laid his hand on the plaintiff. The defendants were informed, by the plaintiff and Mrs. Collins, at the time of their entry, that the plaintiff and Mrs. Collins were occupying the premises, by the permission and as tenants of William L. Clark; and that they did not occupy under Durand; Clark claiming to be the owner of an undivided interest in the premises, as a tenant in common. Before the 30th of May, Mix had been informed, that Du-rand had moved from the premises ; and there was no evidence to prove, that there was any privity in fact between the plaintiff or Mrs. Collins and Durand, in regard to the premises, or the occupation thereof; nor was there any evidence to shew, thaj Durand had been in the possession of any part of the premises subsequent to the 25th of May; or that he had ever occupied them exclusively, as the tenant of the defendant Mix; but, on the contrary, this was denied by the plaintiff.
    The defendants introduced testimony to prove, and claimed that they had proved, that no more force was used, on the occasion, than was necessary to remove the plaintiff and her furniture from the house ; and as a justification for the use of so much force as was necessary for this purpose, they offered in evidence certain proceedings in a summary process to recover the possession of lands and houses, under the statute, (tit. 53. c. 3.) consisting of the complaint of Mix to Joseph Dennett, Esq., a justice of the peace, a summons to Riíraná, a venire for six jurors, the verdict of those jurors and a judgment and execution thereon, together with the return of Colt as sheriff’s deputy, on the execution.
    The complaint was dated the 24th of May, 1836, and stated, that on the 1st of May, 1835, Mix demised and leased to Samuel B. Durand, one half of the dwelling-house in question, and the land on which it stands, for the term of one year from that date; that Durand did not elect to surrender the premises at the end of the year, on the 1st of May, 1836 ; and that he had ever since, and at all times, neglected and refused to surrender the premises to the plaintiff, or to quit the same ; and that Mix had given Durand thirty days notice to quit, according to the statute ; praying that a jury of six disinterested freeholders might be summoned to inquire into the truth of the facts stated, and that such facts being found true, judgment might be rendered for the complainant to recover possession of the premises, with his costs, &c.
    A citation was thereupon issued to Durand, to appear before Justice Bennett, on the 30th of May, 1836, and answer the complaint, and be dealt with according to law; which citation was served by the defendant Colt. A venire was also issued, requiring the attendance of six disinterested freeholders, at the same time and place, to enquire inio the truth of the facts stated in the complaint. On the 30th of July, another venire . was issued, requiring the attendance of the jury, for the same purpose, on the 1st of August. This venire was served, by the defendant Colt, who stated in his return, that he summoned the jury to attend the trial, which was continued to the 2nd day of August. On the day last-mentioned, the jury met, and after being sworn, found the following verdict: “ In this case, the jury find, that the said Samuel B. Durand is the lessee of the complainant; that notice in writing, agreeably to the statute, has been given him to quit; that he holds over his lease ; and also, that he holds possession since the time at or before which he was notified to quit, as the complainant has alleged ; and therefore, the jury find for the complainant to recover possession of the described land and half dwelling-house, with costs.”
    Justice Bennett thereupon issued an execution, purporting to be founded on a judgment rendered bj' him on the 2nd of August, commanding the officer, that “ he cause the said >Silas Mix to become possessed of said described premises, by putting the said Samuel B. Durand and all others out of the possession thereof, and putting the said Silas Mix into [the quiet and peaceable possession thereof, by delivering the same to him by turf and twig.”
    The officer, who was the defendant Colt, made his return on the execution, that “ by virtue thereof, he removed said Samuel B. Durand and all others, together with their furniture and effects, out of and from the premises, using no more force than was necessary to perform the same ; and that he restored and put in peaceable and quiet possession of the premises said Silas Mix, by delivering the same to him by turf and twig.”
    The defendants also offered these proceedings as evidence of the truth of the facts alleged in the complaint, and found by the verdict of the jury.
    To the admission of these proceedings, for any of the purposes for which they were offered, the plaintiff objected, on the ground that they were irregular and invalid, as against Durand ; and that if otherwise, the plaintiff being neither a party nor privy, could not be affected thereby ; and consequently, that the execution furnished no justification for the acts complained of.
    The defendants claimed, that these proceedings were admissible as evidence against the plaintiff; that Durand was the tenant of the defendant Mix, of the premises; that he continued in possession up to the time of rendering the verdict and issuing the execution ; and that the possession of the plaintiff was in fact under Durand and a continuance of his possession.
    To repel the claim, or any inference, that there was any privity between the plaintiff and Durand, the plaintiff offered evidence tending to prove, that Durand had never had the exclusive occupation of the premises, as the tenant of Mix, but had occupied the same, by the permission of, and in common with, Clark, who claimed to be the owner of an undivided interest therein, as tenant in common thereof, and had never been out of the possession of the same ; that Durand was not in fact in the occupation of any part thereof, at the time the acts complained of were committed, or at the time of the rendering of the verdict and the issuing of the execution, or at any time during the occupation thereof by the plaintiff and Mrs. Collins. For the same purpose, the plaintiff, in connexion with proof of the possession and claim of Clark, offered evidence tending to prove title in Clark toan undivided interest in fee-simple, as tenant in common of the premises, during the period aforesaid ; that under claim of such title, he occupied and demised the premises, as owner, and in no other character whatever.
    The defendants objected to the evidence so offered, on the ground that the title of Clark was not in issue; and that the proceedings before Justice Bennett were conclusive evidence against the plaintiff of all the facts which they were offered to prove.
    The court admitted the evidence so offered by the plaintiff, for the purpose for which it was offered, and for that purpose only.
    The defendants claimed, that all persons having title or not, who came into the premises, during the pendency of the summary process, without the consent of the complainant, so far as the possession of the same was concerned, came in by collusion implied by law, with the defendant in such process.
    
      It having been proved and admitted, that the defendants entered upon the premises together, Colt being directed by Mix, with the intent to remove the plaintiff and her property therefrom, against her consent, claiming to act under the process against Durand, and to use so much force as should be necessary therefor; the plaintiff offered testimony to prove, that while Colt and Mix were upon the premises, for the purpose of forcibly removing her and her property, the defendant Mix stated to the plaintiff and Mrs. Collins, that unless they would say, that they would hold possession for him until the next morning, their effects should be put out that night; and that, on their declining so to do, Colt said to them, that he should follow the directions of Mix.
    
    To this testimony, the defendants objected, on the ground that it was not proved, that the declaration of Colt was made in the hearing of Mix; but the court admitted the testimony offered.
    The defendants claimed that the court should charge the jury, that said execution was a justification to the defendants for a}l the acts done under, and claimed to be by virtue of, the same; that the complaint and proceedings on the summary process were conclusive evidence against the plaintiff of all the facts therein alleged and purporting to be found by the jury, and of the fact that the plaintiff was in possession of the premises under Durand, and was privy to him. The defendants further claimed, that the court should charge the jury, that said execution was good upon the face of it; and that if it was wrongfully executed upon the plaintiff, by removing her and her property from the premises, as claimed by her, still that she could not recover of the defendants in the action of trespass, but that they were liable, if at all, only in an action on the case.
    The court charged the jury, that although the proceedings before the justice and the execution issued thereon were valid against Durand, and would constitute a justification to the defendants for the removal of him from the premises, and all others entering or claiming under him, or who were in any way privy to him ; yet, that they did not justify the defendant in removing the plaintiff and her property, if the jury should find, that the plaintiff had entered and occupied the premises as tenant to Clark, in the manner and under the circumstances claimed to be proved by her, and not under Durand, of in any way privy to him: that such complaint and proceedings did not, as claimed by the defendants, conclude the plaintiff, nor prevent her from disproving any of the facts therein alleged, or purporting to be found by the verdict, nor from showing that she had entered and continued to occupy the premises under Clark, and not under Durand, or in any way privy to him : that the legal title of the premises was not in question, in this action ; and that the evidence exhibited by the plaintiff in relation thereto, had not been offered or received for the purpose of establishing the title of Clark to the premises, but, in common with the evidence of his claim and possession, and that of the plaintiff under him.
    To shew the character of such possession, and thereby repel the claim of the defendants that the plaintiff was occupying the premises under Durand, and was privy to him, it was claimed, by the defendants, that the court should charge the jury, that the complaint and proceedings on the summary process against Durand, were conclusive evidence against the plaintiff, that the defendant Mix had ousted Clark oí the possession of the premises, as tenant in common ; and therefore, that Clark could not have been in possession thereof, at the time of the entry of the plaintiff. The court refused so to charge the jury, but charged them against the claim of the defendants.
    A verdict being given for the plaintiff, and judgment rendered thereon, the defendants brought a writ of error in the superior court; which was reserved for the advice of this court.
    
      Mix, for the plaintiffs in error,
    contended, 1. That the panel of jurors should have been set aside. First, because it was not taken from the body of the county. It was, therefore, in contravention of the constitution of this state, {art. 1. s. 21.) and of the amendments of the constitution of the United States. Art. 7. In Beers v. Beers, 4 Conn. Rep. 535. 540., it was decided, that the act enlarging the jurisdiction of a justice of the peace, was not within the prohibition of the constitution, on the ground that the liberty of. appeal preserved the right of trial by jury inviolate. Secondly, because Lucius Hotchkiss should not have been empannelled. Thirdly, because the jurors were not chosen, by the city authority, at the time required by the charter. Stat. 117. tit. 15. s. 18. This charter is in derogation of common right, and should be strictly construed, like a particular custom, or the custom of London. 1 Bla. Com. 75., 6, 7. All the powers a corporation possesses, are such as are specifically granted ; and it is confined to the mode of acting or contracting prescribed by the charter. The New-York Firemen Insurance Company v. Ely & al., 5 Conn. Rep. 560. 568. 1 Sw. Dig. 70. The specific grant of certain powers, is the implied prohibition of other powers. 5 Conn. Rep. 572. and cases cited ibid. How is it in the analogous case of electing jurors in towns, under the general state law ? Can they elect jurors but in the month of January ? Can representatives to the General Assembly be chosen on any other day than that prescribed by law ? At common law, corporations are dissolved, unless the head officer is chosen on the day appointed in the charter, or established by prescription. 1 Bla. Com. 485. The King v. Passmore, 3 Term Rep. 199.
    2. That the city court erred in rejecting the record and execution offered in evidence. The case is identical with that of Watson v. Watson & al. 9 Conn. Rep. 140. This was lawful process, lawfully pursued : it operated on the thing described.
    3. That the city court erred in deciding there could be no ouster, and in not leaving it to the jury. 1 Sw. Dig. 102., 3.
    4. That the court erred in admitting the declarations of Colt, when the other defendant was not present.
    
      Baldwin, for the defendant in error.
    
      
       The provision of the charter here referred to, is in these words : “ The said mayor, aldermen and common council shall, on the first Monday of July, annually, meet, and shall then choose one hundred and forty-four freemen of said city to serve as jurors at said city court, and shall return the names of said jurors,” &c. Stat. 157. (ed. 1808.)
    
   Williams, Ch. J.

Various objections were made to the proceedings in the cause, commencing with the empannelling of the jury and ending with the charge of the court.

It is said, that the jury being taken from the city, and not from the body of the county, although in conformity to the city charter, is not organized constitutionally, within the 7th section of the amendment of the constitution of the United States, and the 2lst section of the bill of rights of this state, by which provision is made that the right of trial by jury shall be preserved inviolate.

So far as it regards the constitution of the United States, it is not necessary to examine what effect it could have upon this question ; because it has been well settled, that the amendments to that instrument were never intended to limit the power or to controul the proceedings of the state courts. State v. Phelps, superior court, Hartford county, September term, 1816. Jackson d. Wood & al. v. Wood, 2 Cowen 819. n. Murphy v. The People, 2 Cowen 815. Livingston v. May- or of New- York, 8 Wend. 85. 100. Barron v. Mayor of the City of Baltimore, 7 Pet. 250. Lessee of Livingston & al. v. Moore & al. 7 Pet. 551.

As to our constitution ; the city charter under which the jury were empannelied, was granted in 1784, and provided, that jurors for the city courts should be taken from the freemen of the city. The objection is, that they are not taken from the body of the county, but from a particular section ; and so the trial by jury is not preserved inviolate. To preserve the trial by jury inviolate, cannot mean, that we must pursue the exact course taken in England to collect jurors. If it does, what time is to be selected ; for they have been constantly altering the qualifications, the exemptions and the mode of summoning jurors ? Besides, the common law required merely, that the jury should come from the vicinage. The statute of 4 & 5 Ann. requires, that the jury should be taken from the body of the county. The most general rule, says Lord Coke, is, that every trial shall be of that town, parish or hamlet, or place known out of the town within the record, within which the matter of fact issuable is alleged, which is most certain and nearest thereunto, the inhabitants whereof may have the better and more certain knowledge of the fact. When a parish is alleged within a city, there, without question, the visne shall come out of the parish. Co. Litt. 125. And if there were not as many as four from the hundred, it was good cause of challenge. Note 191., by Hargrave, to Co. Litt. 125. a. The strict principle of the common law seems to have been adopted in the city charter ; and a great inconvenience to our remote citizens is thereby avoided.

Were this, however, an innovation upon the common law, it would not follow that the trial by jury was not preserved inviolate. It never could have been intended to tie up the hands of the legislature so that no regulations of the trial by jury could be made. If it is so, it would be difficult to aee how the defendants could justify their proceedings, under a process with a jury of six; or how a recent act of our legislature could be vindicated, declaring that any electors may be jurors. And this court, upon a former occasion, has said, that within the reasonable intendment of that instrument, if the trial by jury be not impaired, although it may be subject to new modes, and even rendered more expensive, if the public interest demanded such an alteration, it would not be a violation of the constitution. Beers v. Beers, 4 Conn. Rep. 535. 539.

Again, this mode of forming a city jury had existed nearly forty years, when the constitution was adopted. That instrument declares, that the right of trial by jury shall be preserved inviolate ; and is it contended, that this instrument, so carefully securing the existing rights of trial by jury, necessarily destroys the right as it then existed in our cities ? The court cannot accede to this construction.

Another objection was made to the jurors, that as the court of common council did not nominate them upon the day fixed by law for that purpose, they had no right to make such nomination at a future day. The corporation, it is said, possesses no powers but such as are specially granted, and such as are necessary to carry into effect the powers so granted. The People v. The Utica Insurance Company, 15 Johns. Rep. 358. 383. One of the privileges given to this corporation, not to the court of common council merely, is, that they shall have a city court, who may try civil causes by jury. The court, are to be elected, by the freemen of the city ; the jurors, by the court of common council. However much the corporation ought to suffer for their own default, it would be a very harsh construction, to say, that by the neglect of their officers, they should forfeit their charter. This is not claimed ; but it is said, that they shall not have a jury for that year. Suppose the common council neglected this duty intentionally ; would not a mandamus lie to compel them to discharge it ? 10 Conn. Rep. 208. And would it be a good answer by them, that the time had elapsed ? May they, by their negligence or by design, thus deprive the public of the right of a court within the city ? For others without the city may need the benefit of this tribunal, as well as those within the city. Is it not incident to the enjoyment of the privileges conferred by this charter, that there should be a jury? Is it not necessary for the administration of justice according to the charter ? To effect this, it is made the duty of the court of common council to nominate these jurors ; and they are directed when to do it.

It is said, that the law is as imperative as to the time, as it is as to the duty ; and it is analogous to the nomination of jurors in the towns in the month of January, for each year ; which, it is said, cannot be done at any other time. There, it is not confined to a single day, but may be done during the month. This fact, with the penalty for non-compliance, has been sufficient to prevent any question under this law. An omission by one or two towns would not prevent the accustomed administration of justice in the county ; and it cannot be supposed such an omission could be general.

There is one case decided by this court, not alluded to in the argument, which seems to bear upon the point under consideration. Our statute requires the assessment list to be made up and an abstract left with the town-clerk, by the 1st of December in each year. In the case referred to, the abstract was not left with the town-clerk until the 20th of December. It was there contended, as it is here, that the statute, as to time, was merely directory. The court, however, were of opinion, that as the object evidently was, to give to the citizens opportunity to examine the assessment, so that they might have opportunity to appeal, they must be allowed the time fixed by the statute ; and therefore held, that the statute on this point must be considered imperative. But they further held, that although another part of the same statute required the town-clerk to return an abstract of such list to the comptroller, by the 1st of March, under a penalty of 15 dollars, an omission to return such abstract by the 1st of March, would not have the same effect. Of course, this was considered directory merely. The Thames Manufacturing Company v. Lathrop & al. 7 Conn. Rep. 550. 556. The principle there assumed seems to be, that where the object contemplated by the legislature could not be carried into effect, by another construction, there the time prescribed must be considered as imperative; but where there is nothing indicating that the exact time was essential, it should be considered as directory. The object, in the case before us, was, to have jurors at all times when wanted. So the abstract of the lists ought to be with the comptroller, for his use, when wanted. But as there seems no particular reason to be assigned, why the particular day designated by the law should be suffered to be passed over, more in one case than in the other, we think the requisitions in this respect should be subject to the same construction, and both be considered as directory.

Some decisions in the state of New- "York, also, confirm this view of the subject. Their statute requires a sheriff, within twenty days after notice of his election, to give certain bonds. In the case of The People v. Holly, 12 Wend. 486. notice was given to the sheriff of his election on the 1st of December ; and he did not give the bond required until the 1st of January. The court held the time to be merely directory, and that he did not thereby lose his office. The militia law of that state makes it the duty of certain commanding officers to appoint a brigade court martial, on or before the 1st day of June, in each year. In the case of The People v. Allen, 6 Wend. 481., the commanding officer omitted to appoint the court martial until the day of July ; and it was contended, that the acts of the court martial so appointed after the time prescribed by law, were void. But the court held, that the general rule was, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it would be considered as directory merely, unless the nature of the act so to be performed, or the language used by the legislature, shews, that the designation of the time was intended as a limitation of the power of the officer. There, a power was given to a military officer to appoint a court martial, on or before the 1st of June. Here, the mayor and com. mon council are to meet and appoint jurors on the 1 st Monday of July. In each case, public officers are to perform official acts regarding the rights and duties of others ; one regarding a military, and the other a civil tribunal to administer justice. There is nothing in the nature of the power given, or in the manner of giving it, that justifies the inference, that the time was intended as a limitation more in the one case than in the other.

We think, therefore, that we are bound to say, that the regular administration of justice in our cities, is not to be defeated, by an omission of this kind: that the time fixed for selecting jurors, is merely directory : and therefore, that this objection cannot prevail.

As to the objection to the individual juror, Lucius Hotchkiss. It seems his name was duly drawn from the box, and entered in the venire ; but the sheriff, by mistake, summoned Lewis Hotchkiss. The mistake being discovered, the officer is directed to, and actually does summon the man whom he was .first sent to summon. A bare statement of the facts seems to us a sufficient answer to this objection.

The next class of exceptions is to the opinion of the court in admitting and excluding evidence.

It was proved and admitted, that the defendant, Mix, was plaintiff in the execution against Durand ; and that the defendant, Colt, Was the officer who executed it; that they entered together into the premises, with intent to remove the plaintiff, by virtue of the process against Durand ; and that Colt acted under the direction of Mix. It having been proved, that Mix told the occupants of the house, that unless they would consent to hold as tenants under him, they should be put out, that night; on their declining, Colt said, that he should follow the directions of Mix. This reply was objected to ; because it did not appear, that Mix was present; but it was admitted by the court. And we th'rtfck, it was properly admitted. It having been proved, that these persons acted in concert, the declarations, as well as the acts, of one, must affect the other. The rule is well settled, that where a community of design is established, the acts of each of the parties, and their declarations at the time of prosecuting those acts, are evidence against each other. 2 Stark. Ev. 403. 1 East's PI. Cr. 97.

The defendants offered as a justification, certain proceedings before Justice Bennett, viz. a complaint by Mix against one Durand, under the statute to enable lessors, by a summary process, to recover premises let from their lessees, showing that Mix was owner of the house in question, and leased it to Du-rand to the 1st of May, 1836 ; that notice to quit had been duly given, and he held over ; praying process, dated 24th of May, 1836 ; on which due process issued, citing Durand to appear on the 30th of May, and also a jury ; which was duly served. On the 30th of July, Justice Bennett issued another summons for a jury to appear on the 1st of August, to inquire into the facts stated in the above complaint; which summons was served, by the defendant, Colt; and the jury convened on the 2nd day of August, to which time Colt, in his return, says, the cause was continued. The jury found, that Durand was lessee of Mix; that notice to quit was given, and he held over, as claimed; and for Mix to recover possession, «fee. The justice thereupon issued execution as upon a judgment before him of the 2nd of August, for possession ; and directed the officer to cause said Mix to become possessed of the premises, by putting out said Durand and all others, and putting Mix into peaceable possession; which the officer returns he did do. It was objected, that these proceedings were irregular, and even as against Durand could have no effect; and at all events, could not affect the plaintiff, who was not party or privy to them. They were finally read, subject to the future disposition of the court. To meet this evidence, the plaintiff then offered testimony to show, that Durand never had the exclusive possession of the premises as tenant of Mix, but by permission of and in common with, one Clark, who claimed to be tenant in common thereof, and who had never been out of possession ; under whom the plaintiff entered, on the 3rd of May, 1836, as tenant, without any knowledge of, or privity with Durand, who had not been in the occupation since the plaintiff entered. ^\.nd to show the character of her possession» she o§ered to prove, that Clark was owner in fee of an undivided estate in the premises in common ; to which evidence the defendant objected, on the ground that Clark’s title was not in issue, and that the proceedings before Justice Bennett were conclusive against the plaintiff, upon all the facts which they purported to prove.

As the objection to the testimony offered by the plaintiff is founded upon the effect of the proceedings before Justice Bennett, the disposition of the question regarding that process will settle the other ; and as the same questions are made to the charge of the court, it may perhaps be as well to consider the evidence as all before the court, and inquire what effect it ought to have; and the case must come to the point, what effect shall the proceedings before Justice Bennett have upon the rights of persons not parties to them. The plaintiff claims, that they are all void, and can have no effect whatever. The defendants claim, that they are valid, at least so far as to protect those who act under them from an action of trespass.

There are here two defendants ; one of them the actor in those proceedings, the other an officer acting under the execution ; and as they have severed in their defence, these cases demand separate examinations. For although an officer may be justified, by a legal warrant or execution, yet the party must shew, not only a warrant, but the judgment upon which it is founded. Turner v. Fellgate, 1 Lev. 95. Moravia v. Sloper, Willes, 34.

Is the defendant Mix justified, by those proceedings? This summary process was dated the 24th of May, and was returnable the 30th of May. After service, nothing is heard of it. It does not seem, that the parties appeared ; that there was any court; on the return day, all are silent; and the proceedings appear to be ended. And yet on the 30lh of July following, without any new. process, Justice Bennett issues his precept to the sheriff to call a jury to enquire as to a lease from Mix to Durand, notice to quit and holding over, &c. and to meet on the 1st day of August. On the 2nd day of Avgust, to which the sheriff in his return says the cause was continued, the jury met, and found a verdict for the plaintiff. Whether the parties, or either of them, were present, or whether any evidence was laid before the jury, no where appears ; or whether even the justice was there, does not appear, except by the execution ; nor is there any other evidence that a judgment was rendered by him. Upon a verdict so obtained, the magistrate issues an execution, directing that not only Durand, but all other persons, are to be put out of possession of that property of which Mix claimed to be the owner on the 24th of May preceding, and which the plaintiff claims she was in possession of, by permission of Clark, who was tenant in common of the premises from the said 30th of May to the time of this execution.

From this brief statement it appears, that on the 30th of July, there was no complaint pending before Justice Bennett. The return day of a former complaint had passed, and the complainant had suffered it to sleep more than two months; and the county court might as well summon a jury to try the causes discontinued at the former term, as could this magistrate issue this venire ; more especially, as he did not summon in any party who was to be affected by it. Notice to the party is an indispensable requisite, founded upon the principles of natural justice, as well as express statute. 4 Bla. Com. 280. Chase v. Hathaway, 14 Mass. Rep. 222, 224. Nor is there any record that any judgment was rendered, even that the plaintiff should recover possession. We need go no further to declare these proceedings entirely irregular. The magistrate had no authority to issue an execution, without complaint, without a hearing and without a judgment. The party then who procured it, or acted under it, cannot be justified by it. Parsons v. Lloyd, 3 Wils. 345.

It is contended, however, that trespass will not lie; and Watson v. Watson & al. 9 Conn. Rep. 141. is cited. That was a case where the proceedings were regular, but the process was abused. Here, the proceedings are irregular; and in such case, trespass always lies. The defendant Mix has, therefore, no claim for a new trial.

As it respects the sheriff; it is said, that he had in his hands an execution valid upon its face, which it was his duty to execute, without enquiring into the proceedings upon which it was founded ; and the question arises, was this process of that character? Had Justice Bennett a right to command all persons to be removed from these premises ?

Our law has carefully reserved the trial of the title of land for the decision of the higher courts, so that even in an action of trespass, where title is pleaded before a justice, his jurisdiction ceases ; and the county courts have not final jurisdiction in the most trifling suits of that kind. It was found, that tenants sometimes took advantage of this salutary law, to retain possession of premises they held under leases. To guard against this, the legislature, in 1806, passed the act upon which the proceedings before Justice Bennett were founded ; by which, a lessor, giving thirty days notice to his tenant to quit, after the expiration of his lease, might complain to a single minister of justice; and six days after the expiration of the thirty, might bring his tenant to answer before the justice, and a jury, who are to enquire whether the tenant is lessee of the plaintiff, and holds over after his lease has expired, and after the notice to quit; and if they so find, the justice may render judgment for the plaintiff, to recover possession of the premises and his costs, and award execution.

When we consider the summary nature of this process ; that it was brought before a single justice of the peace ; and that its effect is to turn families from their dwelling-houses, after a week’s notice; it is clear, that this power, thus conferred, is not to be extended beyond the object contemplated, unless the terms of the statute imperatively require it. The object in view, evidently, is, to restore to the plaintiff a possession, which is retained by the defendant, contrary to an express stipulation. It does not purport to affect the rights of any but those who were parties, or derive right from the parties. It does not even require the complainant to prove his title to the property. We must then examine with care the language of the statute, to see if there is any thing, which requires a construction, that will affect the innocent as well as the guilty, those who have title as well as those who have not, and those who have no notice, as well as those who have had due notice. If the statute allows all persons to be put out of possession, by a process against any one who may have taken a lease, it may be used as an instrument of great oppression, in the hands of the malevolent. Any person, who has taken a lease from another, and is charged with notice and holding over contrary to his stipulation, may, by permitting judgment and execution against himself, furnish an instrument as operative against a stranger as himself; and thus a tenant under the real owner, or even the real owner himself, with his family, without any previous notice, may be driven from his home, and have to seek a return by the slow process of a common law suit, which, in many cases, could not furnish any thing like adequate redress.

Does the statute require such a construction ? It says, indeed, that judgment must be rendered that the plaintiff recover possession of the leased premises. What possession 1 The possession of which he claims he is excluded, by his lessee, and those who derive title from him. Their possession is the only thing of which he complains, and for which he seeks redress. It cannot be supposed, that the law intended to give him what he did not seek, or more than he asked for. When then he is restored to the possession of which he claims to have been deprived, complete justice is done to him, and no injustice to others.

It may be said, that the words of the statute are not satisfied, unless exclusive possession is given to him ; nor can he be said to have possession, unless it be exclusive. The statute does not expressly require this ; and when we find the fourth section of the act extending its provision to those who derive title from the lessor or lessee, though the primary object may have been to say the process may be taken out against them or by them; perhaps also, it may be taken to mean, that persons deriving their title from the lessee, may, by process against them, be excluded from the possession. If this is a fair construction of that clause, it shews, that it was before at least doubtful, whether even such persons would, by the general provision, have been affected, by an execution. If so, of course, others having no privity with the lessee, could not be.

Again, the third section provides, that all persons claiming title to the premises, shall, notwithstanding this act, or any proceedings that may have been had under it, be entitled to their remedy at law, in the same manner as if this act had not been passed. Might not, then, the owner of property, who had taken no lease from the plaintiff, and who had been turned out of possession by the execution; sustain an action of trespass, were it not for this act ? And if so, do the proceedings under it, as against him, make it less a trespass ? Does not this section intend to protect all persons claiming title from the operation of the other sections, and the proceedings under them ? This construction will give to the statute entire operation, for all the purposes for which it was designed, while a salutary check will be imposed upon improper proceedings under it. As it respects the lessee, who is holding over, it will be an instrument of coercion, which may be speedily called into action. As it respects all others, it will be harmless.

This execution, then, instead of commanding to put out of possession ¿S'. Durand and all others, should have directed to put out of possession Durand, or Durand and all others deriving title from him. The first would be certainly safe and proper ; but under the third section of the statute, he might have a right to remove others claiming under his lessee, without which the statute might be inoperative.

It may be said, how is the sheriff to know who do claim under the lessee 1 He must act, as in many other cases, at his peril. When reasonable doubt exists, he is not bound to proceed witnout indemnity ; and then the loss, if any occurs, will fall where it ought.

It was said, the form of execution was taken from Judge Swift. It is true, that form is adopted in 2f Sw. Dig. 781, 2. It was not, however, in pursuance of any decision of court; nor were these forms, it is believed, collected by him in person. They cannot, therefore, be considered as authority.

We are, therefore, of opinion, that the execution purported to give an authority to the officer, which the justice could not grant; and that he must, therefore, be responsible. This being so, the evidence offered to show Clark’s title and the plaintiff’s entry under it, though perhaps unnecessary, was certainly proper, as tending to repel any supposed privity with Du-rand.

The superior court is, therefore, advised, that there is no error in the judgment of the city court.

In this opinion the other Judges concurred.

Judgment affirmed.  