Case v. Shepherd
New York Supreme Court
This was an action of trespass quare clausum fregit, for treading down the plaintiff’s grass, and cutting and carrying away wheat, rye, oats, &c. from his close, &c. Plea not guilty, The cause was tried, at the Rensselaer Circuit, before Mr. Justice Benson, The defendant was a justice of the peace; and in July, 1797, the plaintiff was indicted before him under the act to prevent forcible entries and detainers.
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This was an action of trespass quare clausum fregit, for treading down the plaintiff’s grass, and cutting and carrying away wheat, rye, oats, &c. from his close, &c. Plea not guilty, The cause was tried, at the Rensselaer Circuit, before Mr. Justice Benson, The defendant was a justice of the peace; and in July, 1797, the plaintiff was indicted before him under the act to prevent forcible entries and detainers. The plaintiff pleaded to the indictment, hut before trial of tho traverse, he obtained a certiorari from this court to remove all the proceedings, which he delivered to the defendant,…
1Per curiam
There can be no doubt that the delivery of the certiorari to the justice, superseded his powers, and rendered all subsequent proceedings before him coram non judice, and void.(a) (Cro. Oar. 261; 1 Salk. 352.) The act *28requiring bail in certain cases, (11 sess. c. 2, s. 4,) upon certioraris, does not apply to the case of an indictment before a justice, under the statute of forcible entry and detainer; for it is not a judgment or order within the meaning of the act.
As the magistrate holds a court of a special and limited jurisdiction, and proceeded after his power was taken away by the…
2Cases cited24 opinions
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