there? Would it be necessary to say that Thomas Carlin was a white man, and therefore entitled to hold public property? or that he was 21 years of age, with sufficient mind, memory and understanding to enable him to make a will, execute a deed, or transact ordinary business? Is that required of the pleader? Unless it is, I do not see what else could be stuffed into the indictment. The indictment describes him as an officer, superadds his duty, and charges, that under process of replevin which he had a right to serve, he took this property out of the possession of Mr. Jones; and that, upon the very day, and at the very time he took it, he permitted it willfully to be taken out of his possession. If that does not charge a willful neglect of duty that the law enjoins, I am at a loss to know what would.

The second count is, that Carlin, being a public officer, charged with a public trust, as one of the Deputy Sheriffs of the city and county of New-York, on the 25th day of January, 1855, willfully neglected to perform his duty. Now, if there were no specification in that count, as to the act he did, which is evidently a willful neglect to perform his duty, perhaps the count would be bad; but it shows how he willfully neglected to perform his duty: "In this, that the said Deputy Sheriff took and carried away from the possession of Arthur T. Jones, of the city of New-York, one horse, of the value of $100, under certain process in replevin, or for the claim and recovery of personal property-the said horse then and there being the property of the said Arthur T. Jones. That the said Arthur T. Jones, afterward, and within the time limited and prescribed by law, put in the undertaking and security required by law to entitle him, the said Arthur T. Jones, to a return of the said horse; of all which the said Carlin then and there had due notice, and the said horse was then and there, to wit, on the 25th day of January, in the year aforesaid, demanded of and from the said Carlin, by the said Arthur T. Jones; and the said Thomas Carlin, then, and from thence hitherto, has wilfully neglected to return the said horse to the said Arthur T. Jones, or to per

form his duty in respect thereto, contrary to his duty as a public officer, in that behalf, against the form of the statute," &c.

That goes on to allege a little farther than the first count, not only that he, as a public officer, took this property, but that Mr. Jones went on, under the statute, and gave security which entitled him to a return; that he demanded the property, and that Carlin had willfully neglected to perform his duty, by delivering it to some person unknown.

Now the third count is, that "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 NewYork, 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," &c.

Permit me to say, although the counts were drawn by me, yet I submitted them to one of the clearest heads in drawing indictments that I ever met with in the city of New-York. I submitted them before they were engrossed, to the courteous, kind-hearted, and talented clerk of this Court-Mr. Vandervoort-who has no superior in drawing indictments in criminal cases. It underwent his supervision, and not only that, it underwent his criticisms, and I beg to thank him for the valuable suggestions and corrections which he afforded me in this particular indictment, and also in many others, which has undoubtedly prevented me from falling into many blunders, that I might otherwise have committed. I am

satisfied, after a careful perusal of the counts, that they could not be more correct. I beg to thank him for the material assistance that he has rendered to me, and I am glad to take the opportunity presented by his absence, to pay this deserved tribute to his ability.

But my learned friend says, that the conclusions of the count aver matters of law, and not fact. I submit that no fact further than those stated is necessary. Now, my learned friend says there are no authorities on this point. To the credit of the city of New-York, I will admit, that there is no precise adjudication upon a question just like this. Why? Because no such man as the complainant ever thought proper to devote his time, his talents, and his money, for the assertion of his rights, and the prosecution of public justice. Why, men stand in fear of Sheriffs and Deputy Sheriffs. They stand in fear of official dignity; and the history of this case shows the propriety of that fear-for it has cost Mr. Jones more time, and ten times as much money as the animal is worth. It is not the first time that this law has been violated, but it is the first time that we find a man like Mr. Jones, with sufficient moral and physical courage, to assert his own rights, and at the same time those of the community. From the commencement to the end of this controversy, we have been obliged to fight step by step, and Mr. Jones is entitled to as many laurels, as the gentleman who took Nicaragua, with a company of fifty men against eight hundred. I consider it a crowning glory to any man who, to support public justice, voluntarily enters into a prosecution of this kind.

THE COURT. That is not exactly within the argument.

MR. WHITING.-It is; because it is allied to a motion which I will make. I move that your honor go on and perform the remaining duty which the law imposes upon the Court; and impose such sentence upon this man, who stands convicted of the offence, as the law adjudges, and as shall comport with what your honor thinks due to a violation of the law.

MR. CLINTON.-I wish to call the attention of the Court to the argument of the gentleman, where he asserts that the section is

mandatory. The expression upon which he relies is, that "the Sheriff shall take the property into his custody and retain it;" but it does not say that it shall be retained for any specific length of time; nor does it help the difficulty arising upon the other section, that the defendants are only entitled to it, by asking for it, at any time before its delivery to the plaintiff. I do not know whether the counsel admits the two elementary rules with which I set out. In one part of his argument he seems to have done so, and in the other not. He says that a statutory offence may be described in the language of the statute. Suppose it may, which is the statute that describes this offence? There is no language in the statute to make this an offence, except the various sections of the Code-if it be an offence at all. The language embraced in these various sections is not incorporated into the indictments; so it comes down to this: that the generic facts, necessary to constitute an offence, must all be stated, instead of the conclusions of law derivable from those facts. Now, in regard to this second count, I call the attention of the Court to the fact that there was no suit described in it; and if your honor will analyze these different counts, you will find that all of them contain radical defects, even assuming that I am all wrong as to the main proposition of law, that the Sheriff has a right to deliver this property the moment he takes it. The counsel has not answered any one of the plain propositions in relation to the construction of these counts; but his argument tacitly admits that I am correct, and I am happy to have so high an authority as the gentleman himself to the elementary writers whom I quoted. If your honor be with us on this motion, that will end the matter; otherwise, we will have to argue on the bill of exceptions, of which a copy has been served upon the District Attorney.

THE COURT.-I shall be glad when this horse gets ridden out of my jurisdiction. It has occupied more time than half-a-dozen murder cases would have done.

MR. CLINTON.-That animal will become more famous than the Bucephalus of Alexander, or Don Quixote's Rosinante.

THE COURT.-Possibly they were never ridden by so many counsel.

MR. JONES.-I think this one never will be again.

MR. WHITING.-Recollect, your honor, that horse flesh was, at a certain period, in such esteem, that a monarch is recorded to have offered his kingdom for one.

On application of Mr. WHITING, Deputy Sheriff Thomas Carlin was ordered by the Court to find bail, in the sum of $500, for his future appearance.

The Court then adjourned.