Majority
p. 364The People, on the complaint of Jared Bennett, v. Amasa King. moved to quash the conviction, and that a re-restitution issue, for the following reasons : 1st. For want of certainty in the description of the premises, they being described only as “ tenements and improvements,” without nom. ing the county in which situated. 2d. Twenty-four persons were sworn upon the grand jury, who found the bill, so that more than twelve were necessary to
Headnote
ON certiorari upon a conviction for a forcible en * try and detainer.Gold, for the defendant,
p. 365.the finding. 3d. Because a challenge to a grand ju-. ror for having given a bond of indemnity[1] to the complainant, was overruled. 4th. Because the defendant was not brought into court before restitution awarded to traverse the indictment. 5th. Because, ■when the defendant voluntarily appeared and offered to traverse, he was refused. 6th. Because, it is not alleged, that the complainant was seised or possessed of the premises. opposed the issuing a writ of re* restitution, because the term under which the de«. fendant claimed had expired.
Henry, contra,
The inquisition and proceedings below must be quashed, and re-restitution be awarded. The last objection is fatal, within the decisions of this court, in Beebee ads. The People, in January term, 1802, and Shaw ads. The People, August, 1803.[1] I think the second and fifth, also, are equally fatal. As to the objection that the term is expired, and neither party have title, we cannot inquire into, and decide by affidavit in this way on the title or rights of the parties ; the complainant below, has nothing to do with that. He must give up the possession irregularly obtained, put the defendant in statu quo, and then proceed legally to the question of title.
† † 1 Caines, 125.