The protestando is whоlly unavailable in the present proceeding, and the fact protested against is admitted, just the same as if there had been no such protestation. The only purpose is to preserve the liberty of disputing the fact protested against in some other suit or proceeding, and such being the intent, it is held that even if the prоtestation be repugnant or inconsistent, it will merely be rejected as surplusage. 1 Oh. PI. 617; 3 Ch. PI. 1156 ; Com. Dig., PI. N., Protestation; 2 Saund. 103, nоte; 2 Ch. PI. 91. Beside, the demurrer, although informal, will be received as such, there being no demurrer to a demurrer. 1 Ch. PL 666.
The first count alleges that at a day and place named, the respondents, with force and arms, did wilfully obstruct Charles P. Danforth, sheriff, &c., duly appointed and qualified, and being then and there in the due and lawful execution of his offiсe, in the service of a certain writ of replevin in a civil case — contra formam statuti. It is argued by the defendants’ counsel that the term, “ in thе service of a certain writ of replevin,” is but a specification of the general statement immediаtely preceding, namely, that he was “in the due and lawful execution of his office of sheriff.” But to say nothing of the pause immediately after the word sheriff, we think this is not the true reading. On the contrary, the structure of the whole paragraph accords with the description of the offence in the act, and pursues the same оrder; stating the obstruction, the name of the officer, the office he holds; that he was duly qualified and authorizеd, and in the execution of his office, and then states in the service of what pro
In Commonwealth v. Call,
But a more important inquiry arises, and that is, whether the indictment shows with sufficient certainty that the process was legal; that being expressly made essential by the statute to constitute the offence. The general rule is, that indictments upon statutes must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it; 1 Ch. Cr. Lаw 232, 281; and the rule is recognized ifi State v. Gove, 34 N. H. 515, and State v. McKenzie,
In this case the words of the statute are descriptive of the offence, and the indictment should expressly charge the facts which constitute it, and nothing is to be taken by argument or inference. It is to be construed strictly, and should by positive averment show the offence committed. Whar. Cr. Law 132; State v. Abbott, 21 N. H. 439, 440, and cases cited. Uрon these principles the first count must be held bad, unless the allegation that the
The second count is similаr to the first, except it sets out the writ of replevin, stating that “ said writ of replevin is as follows, to wit.” It does not statе, however, that the writ was duly issued out of the Court of Common Pleas, or that the bond required by law to be given by the plaintiff, “before the service thereof,” had been given; and we are inclined to hold that the process is not so described that the court can see that it was legal. In Baldwin v. Moulton, 4 Shep. 33, which was trover for goods taken by virtue of a writ of replevin, it was held that no valid bond having been given before service, the process afforded the officer no protection. So, in Smith v. McFall,
Upon these views we hold both counts to be defective. There must, therefore, be
Judgment for the respondents.