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tion of the Court, on this motion. The leading and controlling one, and to which all the others are merely subsidiary, is that the offence sought to be charged in this indictment is no offence at law. In other words, if the Deputy Sheriff did everything charged in the indictment, I propose to show, by the authorities, by the statutes, and by reasoning, that he had a perfect right in law to do so.

Upon the trial of the case, his counsel anticipated an acquittal, and the points which I now press were not raised before the Court at that time. We supposed that he would be acquitted upon the merits; and that therefore it was unnecessary to discuss that proposition. Our attention was not particularly called to the subject until after the trial had closed. But before discussing that leading point, and supposing, for the argument's sake, that I am wrong in that, and that the Sheriff had not the right to deliver the property to the plaintiff before the expiration of the three days allowed by the statute; I will call your honor's attention to the different counts in the indictment-the first and the third-and then proceed to the discussion of the main point in the argument.

MR. WHITING.-What do you say upon the other counts?

MR. CLINTON.-I say that none are good. The first count is in these words:

"That Thomas Carlin, late of the First Ward of the city of NewYork, in the county of New-York aforesaid, then and still being one of the Deputy Sheriffs of the city and county of New-York, duly appointed and sworn on the 19th day of January, in the year of our Lord 1855, at the ward, city, and county aforesaid, as such Deputy Sheriff and public officer, and under process of replevin and claim for the recovery of personal property, took from the possession of one Arthur T. Jones, of the city of New-York, one horse of great value, to wit, of the value of $100; and the said Thomas Carlin, then and there, in violation of and contrary to his duty in that behalf, he, the said Thomas Carlin, then and there being such public officer as aforesaid, did willfully neglect to perform his duty in that behalf, and did then and there, on the day and year, and at

the place aforesaid, suffer and permit the said horse to be taken from and out of his custody and possession by some person or persons to the jurors unknown, to the great damage of the said Arthur T. Jones, against the form of the statute in such case made and provided, and against the peace of the people of the State of NewYork, and their dignity."

That is the whole of the first count; and I call your honor's attention to this, that none of the generic jurisdictional facts are stated in that count, which, if true, would constitute an offence against the criminal law. It is a rule in criminal and in civil pleading, with which the Court is familiar, that the facts, and not the conclusions of law, must be stated; from which facts, if true, the law deduces its conclusions that a case, either criminal or civil, is made out. Now, I shall proceed to apply that principle to this case. It is one so very clear that I do not deem it necessary to cite any elementary works upon the subject; but if it be desired, I will submit the authorities. And here I should state, in my own excuse, that having been occupied so closely, as your honor knows, during the week, I have not had leisure to reduce my points to writing, as I intended to do, for the use of the Court.

THE COURT.-What do you understand to be the defence to that count?

ment.

MR. CLINTON. It does not state the generic jurisdictional facts; and I will call your honor's attention to its deficiencies in a moThis count should show that the Sheriff had no right to suffer and permit the horse to be taken out of his possession, by a person or persons to the jurors unknown. The count charges that he permitted the horse to be taken out of his possession by some person or persons to the jurors unknown. That is the gist of this

count.

MR. WHITING.-Oh, no!

MR. CLINTON.--You will have an opportunity to reply after I have concluded, and it is not necessary now to interrupt me.

MR. WHITING.-Well, then, state the count correctly.

MR. CLINTON. I say that I have stated the essence of the count. I have read the whole count, and his honor can judge whether my view is correct or not. Perhaps I should here give a short analysis of the three counts. The first I have already given. The second is for neglecting to make a return of the horse to Jones; and the third for delivering it up to the plaintiff. As a principle of law, therefore, it is clear that it should appear upon this count that the Sheriff had no right to deliver that horse to some person to the jurors unknown.

Now, what are the facts stated here? First, the defendant is a Deputy Sheriff. Secondly, he had process of replevin, and claim for the delivery of personal property. Thirdly, that he took from the possession of Arthur T. Jones, one horse of the value of $100; and the next fact is, that he suffered and permitted the said horse to be taken out of his possession, by some person or persons to the jurors unknown. These four facts are all that are stated in that count. The rest is mere inference and argumentative conclusions, if you please, of law. Now, in the first place, it does not appear upon that count that Mr. Jones was damaged; secondly, it does not appear that the Deputy Sheriff had no right to deliver that horse to some person to the jurors unknown. Now, as to whether he had a right to deliver it, according to this count, or not, I will call your honor's attention to the Code.

And here I will state another principle in criminal and civil pleading, which is, that the rules of pleading are to be construed against the pleader, the same as deeds are to be construed against the grantor, if they are ambiguous. But as to the rule of pleadings, both civil and criminal, that is the principle which runs through all the authorities. If there is anything susceptible of two constructions, the construction against the pleader is to prevail, and therefore all that is not stated against the defendant in that case, is presumed to exist in his favor.

Now, what also is there necessary to be charged in that count, in order to show that Mr. Carlin had not the right to deliver the

horse to some person to the jurors unknown? Sections 207, 208 and 209, of the Code, provide what shall be done before the Sheriff shall be entitled to go and take the property. The subsequent sections provide what the defendant shall do, to entitle him to a return. I will not read those sections, because your honor is familiar with them. In the first place, there must be a bond given to the Sheriff, of the sufficiency of which he is to be the sole judge. In the next place, there must be an affidavit containing five distinct requisites. Then there must be an endorsement in writing upon the affidavit, requiring the Sheriff to take the property from the defendant and deliver it to the plaintiff. Then the Sheriff has a right to deliver it to the plaintiff, or into the custody of any person he sees fit, unless the defendant establishes, on his part, the right to its possession. In the first place, it does not appear in that count that any suit was pending. I will thank the Court to note that. Suppose, if your honor please, that the jurors, so far as that count was concerned, did not know that there was a suit,-and with reference to this count you are presumed to say that they did not know it. Now, observe that the plaintiff in that suit might be the very party described to the jury as the "person unknown." Then, the next deficiency in that count is, that it does not appear that the defendant put in security, to entitle him to the possession of the property. It does not appear that the plaintiff in the suit failed to take such a course as to entitle him to it. For example :-If the defendant did not give security within three days, and require a return of the property, then the Sheriff had a right to deliver it to the plaintiff. That is fact number two left out of the count. Fact number three is, for aught that appears to the contrary, the suit might have been discontinued, and the plaintiff might have directed the Sheriff to deliver it to somebody else. All these three things must be stated in that count, as facts which, if true, would be ground of an offence.

I therefore contend, your honor, most respectfully, that if all the facts stated in the first count be true, you are to throw out the con

clusions of law, and then no offence whatever is described in the count.

I now call your honor's attention to the third count :—

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And the jurors aforesaid, upon their oath aforesaid, do further present that the said Thomas Carlin, being one of the Deputy Sheriffs of the city and county of New-York, as aforesaid, on the day and year last aforesaid at the ward, city and county aforesaid, in violation of the statute, in regard to the duties of Sheriff, under the act regulating proceedings in replevin, and claim for the recovery of personal property, delivered out of his possession, to one of the plaintiffs in a replevin suit, brought by John Collins, Jr., and Maria L., his wife, against Arthur T. Jones, Cleaver & Mason, in the Superior Court of the City and County of New-York, to wit: to John Collins, Jr., one horse, of great value, to wit, of the value of $100, the property of Arthur T. Jones, and from whose possession the said Thomas Carlin had taken the said horse, under and by virtue of a process in replevin and claim for the recovery of personal property, which delivery was prohibited by the statute, in case made and provided, and against the peace of the people of the State of NewYork, and their dignity."

Now, if your honor please, there is a most fatal omission in that count; and I need not say here, that in order to determine the sufficiency of each and every count, your honor is to determine it the same as though no other count were in the indictment; for no principle is better settled than that one good count cannot help out a bad one. The essence of the third count is, that the property was delivered to the plaintiff.

Now let us see whether, upon the facts stated here, the Sheriff had a right to deliver it to the plaintiff; and, in this connection, I ask your honor to take into consideration those elementary rules of pleading, which I called attention to in relation to the first count. The first fact is, that there were proceedings in replevin, and claim for the delivery of personal property. Secondly, that in that suit, the Sheriff delivered out of his possession, to one of the plaintiffs,

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