The questions raised in this case, although numerous, are not attended with much difficulty. My opinion upon them I shall express, in the order in which they have been made, either silently alluding to the facts, or stating such as the occasion may seem to demand.
In this state, the distinction recognized in Westminster-Hall, between courts of record and not of record, has never been adopted. All our courts, from the supreme court to that of a justice of the peace, are courts of record; and, hence, the act for regulating trials on writs of error has provided, that “the Supreme Court shall have jurisdiction of all writs of error, brought for the reversal of any judgment of the county court, or any inferior court, or from any assistant or justice of the peace.” (Stat. p. 260. ed. 1808.) More than thirty years since, in the case of Stuart v. Pierce, 1 Root 75. it was determined, that a writ of error was sustainable to reverse the judgment of two justices, upon the statute for a forcible entry and detainer. In Bird v. Bird, 2 Root 411. and in Bull v. Olcott, 2 Root 472., similar judgments were reversed, by the superior court, on writs of error; and so far as I have knowledge, this practice has been invariably uniform. The statute *92before mentioned, by its obvious construction, authorized these determinations; and the practice under it has been too firmly established, at this late hour, to admit of a question. These observations dispose of the objection made against the proceeding in this case by writ of error.
The prosecution of the defendants below, by information qui tam, is believed to be sanctioned by usage, and free from objection. Process by indictment, pursuant to the practice in England, and in a neighbouring state, has never been resorted to; and for aught that I can discern, is impracticable. A grand jury cannot be convened, by two justices; the statute conferring the power of causing them to be summoned, applying to the superior and county courts only. (Stat. p. 373. ed. 1808.) The restriction of informations qui tam, to those cases only, in which corporal punishment may be inflicted, would impugn the principle, on which prosecutions of this nature are had, upon the statute against breaking the peace, and on the law to prevent disorders in the night season. In both these instances, the proceeding is by information qui tam, when the offender is not liable to corporal punishment. That the state has an interest in the prosecution of the persons guilty of a forcible entry or detainer, appears from the 10th section of the statute, (p. 348. ed. 1808.) which enacts; “that any assistant or assistants, justice or justices, holding such courts of enquiry, may impose a fine on every offender committing such force, not exceeding the sum of three dollars thirty-four cents, and bind him or them to the good behaviour;" and the interest of the individual forcibly disseised in the same process, is manifest from this consideration; that the same court of enquiry, which fines the offender, causes him, by the same judgment, to be repossessed of his property. The same process, operating diverso intuitu, originated from the practice of courts in this state, and is one of our peculiarities. Much of the practice here, both in criminal and civil suits, is appropriate to ourselves, and not consonant to that of Westminster-Hall; and “the motley kind of action” in the case before us, is supported by usage and analogy, and warranted by the statute. Although the information qui tam, is a process authorised by the law, as the court of enquiry may fine; yet it is not indispensible that they should fine, to vindicate their judgment. The law is penal; and therefore, on this point, *93is not imperative. Inasmuch as no fine was assessed, the writ of error was brought by the proper persons. (a)
The bond of recognizance, taken by the two justices, was undoubtedly legal. From the mode of issuing the process, required, as it was, to proceed from two assistants, or two justices quorum unus, (Stat. p. 347. ed. 1808.) it became their duty to take the bonds.
The injury done to the complainant, by the defendants, was joint and several; and to the service of the process it is no legal objection, that all the trespassers were not arrested. The process was served on all who could be found.
The dismissal of the first jury was rendered necessary, to prevent a failure of justice, by the impossibility of their rendering any verdict. They had had the case before them two days, and had been returned to three considerations; and then declared in open court, that they could not agree. In the exercise of a sound discretion, and in pursuance of an established practice familiar to every member of the profession, the papers were received from the jury, and they were dismissed. This proceeding was legal and unexceptionable.--The empanelling of the second jury was, therefore, indispensible.
It is said, that the array should have been quashed, by reason of the disqualification of the sheriff to serve the venire. He had returned, that he put Tracy into possession of the land in question, by virtue of an execution; and this return the defendants claimed to be false. Admitting the fact, what was his interest or bias, in the summoning of a jury? The result of the information by Tracy, either way, could not conduce to his benefit or disadvantage; and in all events, the presumption of bias, is potentia remotissima.
The jury, by the special provision of the statute, must consist of indifferent freeholders “dwelling near unto the lands entered upon,” (b) without reference to the town in which they have their residence; and, for aught that appears, they were precisely of this description. No allegation, that there *94were competent freeholders dwelling “nearer" the land, has been made; and in the absence of such an averment, the presumption is, that the justices exercised their jurisdiction soundly.
The lease of the barn, given by Tracy to Willoby, necessarily includes the land on which it was; and although the barn is not now on any part of the land in question, it is not denied that it was upon the land, when the lease was made and delivered. The delivery of this instrument, was the exercise of an act of ownership over a part of the premises, and conduced to shew the possession of the lessor at that time. In point of weight, the testimony was feeble, and probably had little effect; but I am not prepared to say, that it was utterly irrelevant, and of consequence, it was rightly admitted in evidence.
The record in Tracy v. Ward, to which the defendants were no party, was inadmissible to prove title; nor was it adduced for that purpose. A judgment had been rendered against the defendant, Ward, upon which an execution issued, commanding the sheriff to put the plaintiff, Tracy, in possession of the land in question; and the sheriff made his return, shewing his obedience to the writ. The sole question arising is, whether the return is evidence in this case, to prove a delivery of the possession. As relative to strangers, it is prima facie evidence of the facts stated in it; credence being due to the uncontradicted official act of the sheriff, when third persons are concerned. Gyfford v. Woodgate, 11 East 296.
The deed of Fitch to Apthorp, to prove title in the latter person, was rightly rejected. The justices have power to summon a jury, to try the forcible entry and detainer complained of; and if the same be found by the jury, besides the fine on the offender, they are to make restitution, by the sheriff, of the possession, without enquiring into the merits of the title; for the force is the only thing to be tried, punished, and remedied by them. 2 Bla. Comm. 148. 2 Swift’s Syst. 71.
Of the irregularity of the testimony given to the jury out of court, there cannot be a question; and if there existed a doubt, whether it had any influence over their determination, I should consider it as vitiating their proceedings. It is admitted, on the record, by the defendants, that the same evidence was afterwards given before the court and jury; and this identity not being disputed, no disadvantage has arisen to the defendants; and the irregularity has had no effect.
*95To the taxation of the costs, the objection is unfounded. The statute confers on the court of enquiry, an authority “to “tax bills of cost against such persons as before them shall be “convicted of forcible entry or detainer;" and there having been no rule of taxation prescribed, it necessarily was matter of discretion.
It follows as the result, that no error has intervened.
The plaintiffs in error have moved the court to order restitution of the possession, obtained of the land in question, by an execution, which issued in contravention of a supersedeas by writ of error. The novelty of the application, if there were not a short ground on which it must be decided, would render it necessary critically to investigate the authority of the court on the subject in question. It would, likewise, be a material enquiry, whether the supposed supersedeas actually existed. But, leaving these considerations as being unnecessary, it appears on the record before us, that the complainant, with force and strong hand, was dispossessed of his property, by the persons moving for restitution of the possession. I cannot think, that it would be the exercise of a sound discretion, to dispossess a person of land, who, on the record before the court, was actually possessed, until by a breach of the peace, he was forcibly ousted.
My opinion is, that the plaintiffs in error take nothing by their motion.
The other Judges were of the same opinion on all the points.Plea to the jurisdiction overruled; Judgment affirmed; and Motion for restitution denied.
The law has been altered, in this respect, by the late revision of the statutes; the remedy now being a complaint, in the name of the party injured, to regain possession, and an action of trespass for the damages. These proceedings, which are merely civil, will not preclude a criminal prosecution, on the part of the public, for a breach of the peace. Stat. tit. 37. p. 237. R.
This clause is omitted in the late revision. Stat. 236. R.