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1 Tapp. Rep. 204

Russell v. M'Conahey

Guernsey County Court of Common Pleas

Decided November 15, 1817

Guernsey County Court of Common Pleas · decided 1817-11-15

Certiorari, to two justices of the peace, with which was returned a transcript, duly certified, of the proceedings before them, under the “act against forcible entry and detainer.”

Decided 1817-11-15

President.

¶1It is not necessary to consider all the errors assigned in this case, because we are satisfied that the judgment of the justices must be reversed, they having proceeded without a complaint in writing made to them by the plaintiff below.

¶2The “ act against forcible entry and detainer,” provides, “that when complaint shall be made in writing, to any two justices of the peace, of any unlawful and forcible entry, &c. they shall make out their warrant,” &c. The complaint in writing, is to be the foundation of the whole proceedings; upon that alone, are the justices authorised to issue their warrant; it does not appear by the return to this Certiorari, that any such complaint was made: there is, therefore, on the return, an apparen t want of jurisdiction in the magistrates. — It is not only necessary that a complaint should be made in writing to the justices, but such complaint should be a part of the return to the writ of Oértiorari; for without having the complaint before us, we cannot judge of the correctness of the proceedings below; as in this case we cannot know, from the return of the justices, what property it was which the plaintiff sought to recover possession of, nor where situated; so that, if we were to affirm the judgment of the justices, it would be impossible to award a writ of restitution.

¶3Judgment of the justices reversed.

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