20 Wend. 67 | N.Y. Sup. Ct. | 1838
The act of incorporation provides that the warrant shall issue under the seal as well as the hand of the justice, and it is contended the declaration is bad for not averring the fact. To this it is answered that the term warrant implies a seal, and hence an averment was unnecessary. A warrant in a criminal proceeding at common law must be under the seal of the magistrate issuing it, 2 Hawk. 85, 136; 4 Burns’ Just. 393; 4 Black. Comm. 291; and the fact would therefore be implied from the use of the term in such cases ; it would not be a warrant in the sense of the law unless sealed. This process, now frequently used in civil proceedings under various statutes, was taken from the criminal law ; and its import, as there defined, may well be regarded in its new office. Our statute has now dispensed with the seal in both civil and criminal courts in various instances. 2 R. S. 267, § 232. Id. 706, § 3. If we are right in this view, then though the plea alleges the warrant to have been issued under the hand of the magistrate, without the addition of the words and seal, still this does not necessarily negative that fact, if fairly implied ; as the term imports the seal, all that was material to aver was the issuing of the warrant by the magistrate as set forth ; the rest follows. The statute dispensing with the seal sustains this view of the import of the term ; for otherwise it would have been unnecessary.
It is also contended that there should have been an averment in the plea, that the Hudson Aqueduct Company had been organized. It sets forth that R. Jenkins and others, his associates, &c. were created and declared to be a body corporate and politic in fact, by the name of the 11 President and Directors of the Hud
The rate or tax was not to exceed nine per cent, on the moneys actually expended in making the aqueducts and furnishing the water, together with compensation to a few of their officers. The demurrer admits the furnishing of the water by the company and the use of it by the plaintiff; and the right to the tax necessarily follows. The company is thus shown to be a corporate body, and a general performance of the services for which the tax may be levied. It certainly cannot be necessary to set forth the particular steps in the performance of the service.
It is further contended that the pleas profess to answer the whole of the declaration, but in fact answer only a párt. The argument is this, that the plaintiff has counted for two gigs, and the pleas afford an answer but for one. I do not thus understand them. After setting out the proceedings in due form it is averred that the defendant, as constable, “seized and levied upon the said gig in the several counts of the said declaration mentioned as of the goods and chattels of the said plaintiff&c. thereby covering the trespass charged in each count. There are two counts, and the taking of one gig is charged in each. The pleader intended to justify the taking of each.by the use of one and the same process ; and if the two might have been taken at the different times mentioned, under and by virtue of the same warrant, of which there can be no doubt, then the justification is complete ; each trespass is answered ; and the several takings were by authority of law.
Judgment for defendant.
