2 Day 418 | Conn. | 1807
, Amos Westcott jun. brought his action on the case against Isaac Stoyel and William Carder ; averring, that he was legally deputed to serve an attachment, which issued against Stoyel in favour of Job Smith, was signed by Thaddeus Learned, justice of the peace, and directed to the said Westcott as an indifferent person : that by virtue of the writ, he arrested the body of Stoyel, at the house of Carder ; and that Stoyel and Carder, with a fraudulent intent to rescue the said Stoyel from the custody of the said Westcott, and to procure him an opportunity to escape, proposed to receive him into their custody, and to re-deliver him to the said Westcott at a day and place mentioned, so that he might be conveyed to prison : that in consideration of this engagement, the said Stoyel was confided to their custody : but that, instead of being re-delivered, the said Stoyel and Carder combined to permit the said Stoyel to escape and depart out of the state ; “ and that the said Stoyel, with the consent, “ connivance, and assistance of the said Carder, did escape “ and depart into the state of Rhode-Island, to the great “ damage of the said Westcott
The defendants (below) went to trial on the plea of not guilty ; verdict was, rendered against them ; and, on motion in arrest for the insufficiency of the declaration, the same was adjudged sufficient.
If this were the fact, the judgment of the Superior Court unquestionably would be erroneous. Assumpsit and tort may not be joined in one declaration, because they do not admit of the same plea and judgment.
That the action might have been legally founded on contract, is no criterion in this case. It is sufficient to say, that the plaintiff, who had it in his option to commence such an action as he considered best adapted to the nature of the injury, has elected to lay the res gesta in tort Nor is this proceeding unprecedented. In Dickon v. Clifton,
2. It is further objected, that it does not appear, that Westcott acted under legal authority ; and of this opinion is the Court.
He was an officer appointed by special deputation, and it was incumbent on him to show, with reasonable precision and certainty, that he was duly authorized. To this end it must appear, that the writ under which he acted, was legally issued, and directed, and that the arrest was legally made. But the declaration sanctions no part of this proposition.
A brief enumeration of particulars will evince, that the writ was váterly invalid, and that Westcott was entirely destitute of a^horky.
To*every writ a date is essential. If there lie no date-it cannot appear, that the person signing the writ, at the time of affixing his signature, had ahy authority, or that the action was brought, as it should be, to the, next court. But the plaintiff (below) has not alleged, nor does it appear, that the attachment had any date.
A valid writ must be signed by proper authority ; and this must appear to the Court. To determine whether the
To the validity of a writ of attachment duty and bonds are requisite. But it does not appear, by direct averment, by necessary inference, or even by presumption of an inferior kind, that this requisite, in the case under consideration, was complied with. The only allegation bearing on the point is this, that there ivas a certain writ, signed by a justice, and delivered to the plaintiff (below) to serve.
It is likewise necessary to the validity of a writ, that it be made returnable to a court having competent jurisdiction. But, in this case, it does not appear, that the writ was returnable to any court whatsoever.
It is not only indispensible to the validity of a writ, but to the authority of the officer serving it, that it be duly directed to him by competent authority. But, in the case under discussion, it does not appear, that the justice had any authority to sign the writ ; much less, to direct it to an indifferent person.
On the whole, it is perfectly compatible with the declaration of the plaintiff (below,) that the process directed to him was utterly invalid, and that the arrest of Stoyel was illegal and unjustifiable.
The judgment of the Superior Court, of consequence, must be reversed-
c) 1 Term Rep. 276. 2 Wils. 319, 322. 3 Will, 354
2 Wils. 319.
) 6 East 333