Stoyel v. Westcott, 2 Day 418

Bv the Court. , 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. 1.

It is now objected, that the declaration was insufficient, inasmuch as tort and assumpsit were therein joined. 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. Rut, on inspect-! ing the record, it plainly appears, that the action is wholly founded in tort. The contract is disclosed merely by way of inducement ; and the gist of the action is the misfeasance.

The plaintiff has alleged his gravamen, as consisting in a breach of duty, arising out of a fraudulent combination to procure the escape of Stoyel, and in his subsequent escape by the assistance of the defendants. 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, a count founded on the undertaking of the defendant to transport a quantity of malt, which, by reason of his neglect and improvidence, became embezzled and wholly lost, was determined to be laid in tort. To the same purpose is the case of Govett v. Radnidge and others, reported in the third of East, page 62.

The declaration alleges, that th(e defendant had the loading of a hogshead of the plaintiff in and upon a certain cart, for a reasonable reward, but so carelessly, negligently, unskillfully, and imprudently conducted, that by reason thereof the said hogshead was let fall, and the contents thereof lost. The only question in the case was, whether the action was laid ex contractu, or ex delicto. The court was clearly of opinion, that it was founded in tort. Judgment in the case of Samuel v. Judin was founded on the same principle.

One count in the declaration alleged, a delivery ol two promissory notes to the defendant, who, fora commission, was to procure them discounted for tire plaintiff. “ But contriving and fraudulently intending to deceive “ and defraud the plaintiff in this respect, (the defendant) did « not, though requested, pay the said sum of money so by “ him received as and for the discount of said two notes to “ the plaintiff, but on the contrary converted and disposed « thereof to his own use.” With this count was joined another in trover, and it was objected, that the declaration was ill, as tort and contract could not be joined.

The principle was admitted by the court, but was considered inapplicable, for that both counts were founded in tort. 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 justice signing was duly authorized, it is indispensibly necessary, that the Court, to which the writ is returnable, should be mentioned. But the writ of attachment, in this cuse, was signed by a justice, and it does not appear to what court it was returnable. 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