CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY, AT SEPTEMBER TERM, 1839. JOHN L. CORLIES AND JOSEPH A. CORLIES v. RICHARD CORLIES. Certiorari to Justice Throckmorton, in action for a forcible entry and detainer. A complaint for forcible entry and detainer, must state that the complainant was, at the time of the wrong complained of, in possession of the premises, either in fact or in law. Vreedenburg, for plaintiffs. HORNBLOWER, C. J. The plaintiffs in this court, were defendants before the Justice, and a verdict and judgment was rendered against them. A variety of reasons were assigned, why this judgment should be reversed; but it will only be necessary to notice the 1st, viz. That the complaint does not shew that the plaintiff below, had any possession of the premises, at the time when the forcible entry was supposed to have been committed.— In Mairs v. Sparks, 2 South. 516, it was said by this court, that the plaintiff in such an action must have, either a possession in fact, or law that a mere right or claim of possession, is not sufficient, but it must be a right in possession, which is disturbed and for which the action is brought. Bennett v. Montgomery, 3 Halst. 48, and Mercereau v. Bergen, 3 Green R. 244, are to the same effect. It ought then to appear on the complaint filed with the Justice, that the forcible entry was committed upon the plaintiffs' possession, and if it does not, the complaint will be groundless and shew no cause of action. But the complaint filed in this case, fails to set forth or allege any possession in the plaintiff.It states only that the defendants on a certain day, with force and strong hand, entered upon a certain messuage, &c. situated, &c. whereof the plaintiff was seized of an estate of inheritance in fee simple, and threatened to beat, &c. the said plaintiff, "formerly in possession of said lot," should he come upon the same. Now it may be true that the plaintiff was seized of such an estate in the premises, and yet have had no present possession, either in fact or in law; or nothing but a mere right of possession. And indeed the complaint seems to negative any present possession of the plaintiff, for it speaks of the lot as "formerly" in his pos session. In my opinion, therefore, the complaint is insufficient, and contains no legal cause of action. DAYTON, J. A number of nice exceptions have been taken to the proceedings in this case. I shall notice but one, which is undoubtedly well founded, without intimating an opinion as to the other points. The complaint filed with the Justice, charges in substance that the complainant, was seized of the premises therein described, and that the defendants below, entered thereon and pushed and backed off the complainant and his horses, &c. from said premises. These averments may all be true, and yet the defendants be Davison et al. v. Davison's admrs. low, not be guilty of a forcible entry and detainer. To enable him to sustain this action, the complainant must have had actual possession of the premises, at the time of the wrong complained of, a mere seizin will not do. Bennett v. Montgomery, 3 Halst. 49. 3 Halst. 49. It is true that it is averred that he and his horses and wagon were pushed and backed off the premises; but this may be true, though he was there only by accident, or as a visitor, or trespasser-the actual possession of the property, as meant by the law, may at the same time have been in a tenant who alone could sustain this action. The complaint filed is insufficient, and for this reason the judgment must be reversed. FORD, J. and WHITE, J. concurred. NEVIUS, J. absent. Judgment reversed. DAVISON ET AL. v. DAVISON ET AL. ADMRS. OF JOHN DAVISON, DECEASED. Certiorari to Orphans' Court of Monmouth County. An administrator although entitled to a distributive share of the personal estate of his intestate, may be examined on oath, before the Orphans' Court, or Auditors, to prove that he or his co-administrator was indebted to the intestate. The Statute of New-Jersey makes no exception on account of the interest the administrator may have in the increase of assets, or in his being compelled to testify against himself. This summary mode is intended to be a substitute for the more expensive remedy by bill of discovery, in Chancery. THE CASE. Richard Davison and Peter Davison, Jun. Administrators of John Davison, deceased, filed their account in the Orphans' Court of Monmouth County, in July Term, 1835. The plaintiff's in Certiorari, who together with the administrators, are Davison et al. v. Davison's admrs. children and next of kin of the intestate, excepted to that account. The account and exceptions were referred to auditors. On the hearing before the auditors, the exceptants required Peter Davison, one of the administrators, to be examined under oath, touching the truth and fairness of the account, and particularly in relation to a debt due from Richard Davison, his co-administrator, to the intestate, of six hundred and sixty-six dollars and sixtysix cents, and interest thereon, not included in the inventory filed by the administrators, nor charged to them or to either of them, in the said account. The examination of Peter Davison, was objected, to by the accountants, but the auditors overruled the objection, and Peter Davison was thereupon sworn and examined. Upon his evidence, the auditors re-stated the account, and surcharged the accountants with six hundred and sixty-six dollars and sixty-six cents, of principal, and one hundred and fifty-nine dollars and forty-four cents of interest, for moneys due from Richard Davison to the estate of the intestate. On the coming in of the report of the auditors, the accountants filed exceptions thereto, and the Court opened the account for a re-hearing. On the re-hearing, the exceptants again required Peter Davison, the administrator, to be examined under oath, touching the said matters, but the Court overruled the application, and refused to permit him to be sworn. The exceptants, then called upon the court, to have Richard Davison, the other administrator, examined under oath, touching the truth and fairness of the account, and his indebtedness as aforesaid to the estate of the intestate, but this application was also overruled by the court, and thereupon the court ordered the said items of six hundred and sixty-six dollars and sixty-six cents of principal and one hundred and fifty-nine dollars and forty-four cents of interest, to be stricken out of the account. This proceeding on the part of the Orphans' Court, is complained of, as erroneous, and the matter brought here by Certiorari, to be reviewed and corrected. The cause was argued by Randolph and Southard for the plaintiffs, and by Ryall and Vroom, for the defendants. HORNBLOWER, C. J. By the 31st section of the state Rev. Davison et al. v. Davison's admrs. laws, 786, it is enacted, "That it shall be lawful for the court to whom any account is reported for allowance, or for the auditors to whom an account is referred, at the instance of any party interested in the same, or by their own proper authority, to examine any executor, administrator, guardian, or trustee, exhibiting such account, on oath or affirmation, touching the truth and fairness of the same, or any part or item thereof." The authority given to the court, by this enactment, is broad and unqualified: they may, either ex mero motu, or at the instance of any party in interest, examine the accountant under oath. Nor is it a simple authority, which the court may or may not exercise at their discretion, when called upon to do so, by a party in interest. The words, "it shall be lawful for the court," are equivalent to saying, "the court may ;" and "may" is held to be imperative, where third persons have an interest in the application of the power. (Newburgh Turnpike Company v. Miller, 5 Johns. Ch. R. 112, 113.) In the case of The King v. Barlow, (2 Salk. 609,) the church-wardens were indicted for not making a rate or assessment, under the Stat. of 14 Car. II. ch. 12. sec. 18, for the re-imbursement of some constables. The statute says, they "shall have power and authority to make a rate,” and it was construed to be peremptory, as the constables had an interest in the exercise of the power. The court of K. B. said in that case, that the word "may" shall be taken to be mandatory, where the thing to be done, is for the sake of Justice, or the public good. Surely it is for the sake of Justice, to widows and orphans, that this authority is given to the court. The examination, however, must be a lawful one: it must be, "touching the truth and fairness" of the account in general, or of some part or item thereof; and upon the general inquiry, omissions may be inquired into, as well as the correctness of charges and discharges inserted in the account; and the court must decide upon legality of the questions propounded to the accountant. Hence, it becomes necessary to inquire what were the matters about which it was proposed to examine these defendants. It was alleged, on the part of the exceptants, that the administrators had not charged themselves, either in the inventory, or account, with a debt due from one of them to the estate of their intestate; and it was proposed to examine each of them, touching that matter. the |