The People, on the complaint of Bennett, against King

The People, on the complaint of Bennett, against King. If the proceedings for a forcible entry and detainer do not state the complaint to have been seised, it is fatal; so also, ut sesnb., if the bill be found by 24 grand jurors, or if the defendant be not permitted to traverse on his voluntary appearance. On certiorari, upon a conviction for a forcible entry and detainer. Gold, for the defendant, moved to' quash the conviction, and that a re-restitution issue,.for the following reasons: 1. For want of certainty in the description of the premises, they being described only as “ tenements and improvements,” without naming the county in which situated ; 2. Twenty-four persons were sworn upon the grand *jury who found the bill, so that more than twelve were necessary to the finding; 8. Because a challenge to a grand juror for having given a bond of indemnity (see Trelawney v. Thomas, 1 H. Bl. 208,) to the complainant, was overruled; 4. Because the defendant was .not brought into court before restitution awarded, to traverse the indictment; 5. Because when the defendant voluntarily appeared and oifered to traverse, he was' refused; 6. Because it is not alleged that the complainant was seised or possessed of the premises. Henry, contra, opposed the issuing 4 writ of re-restitution, because the term under which the defendant claimed had expired. ' [MAJORITY — Kent, Ch. J.] Kent, Ch. J. 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. Vol. 1. p. 125. 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 qno, and then proceed legally to the question of title. Conviction quashed. Re-restitution awarded. People v. Shaw, 1 Cai. R. 125; see Rev. Stat. vol. 2, p. 508, s. 3, 6, 11; People v. Van Nostrand, 9 Wend. 52; see 4 Black. Com. 148; 1 Hawk. 274; 11 J. R. 504; 9 Wend. 51; 11 Wend. 151; 13 J. R. 349,; 1 Hall, 240. As to complaint, &c., see 2 R. S. p. 508, § 3, and suhsequent’sections; 10 J. R. 304; 13 J. R. 158. .