
    Walker vs. Cruikshank.
    Where a city charter provided, that penalties imposed by the ordinances of the - common council might be recovered “ in an action of debt in any court having éognizance thereof,” and that “ the first process in any such action, brought before a justice of the peace, should be by warrantheld, that the penalties might be sued for, in a justice’s court; and that the warrant might issue without the preliminary affidavit required by 2 R. S. 229, § 18, the charter having been granted since the passage of that statute.
    
      Semble, that an action of debt to recover a penalty imposed by the by-law of a municipal corporation, may be brought in a justice’s court, although the statute authorizing the by-law contains no provision conferring jurisdiction upon justices of the peáee.
    In an action for false imprisonment, the defendant pleaded in justification, that the act complained of was an arrest of the plaintiff under a warrant issued at the instance of the defenjant, who was city attorney of Utica, for the violation by the plaintiff of an ordinance made by the common council; but the plea did not aver that the plaintiff had in fact violated the ordinance: Held, nevertheless, that the plea was good.
    That part of the bill of rights declaring that “ no warrants can issue but upon probable cause supported by oath,” &c. relates only to criminal process, and has no application to arrests in civil suits.
    Error to the Oneida common pleas. Cruikshank sued Walker in the court below, and declared for trespass and false imprisonment. The defendant pleaded first, not guilty; second and third, special pleas of justification. In the second plea, the defendant set forth portions of the “ act to incorporate the city of Utica,” passed February 13, 1832. [Slat. 1832, p. IT.) By the thirty-eighth section of the act, it was enacted that the common council should, among other things, have power to make and establish ordinances," rules, regulations and by-laws, to prevent vice and immorality ; to preserve peace and good order; to restrain and suppress disorderly and gaming houses, billiard tables, and all' instruments and devices used for gaming. By the fortieth section, the common council was authorized to enforce observance of their ordinances and by-laws by imposing penalties not exceeding $25, for any one offence, “to be recovered with costs, in an action of debt, in any court having cognizance thereof.” The 42d section provided that actions brought to recover any penalty incurred under the act, or the ordinances, by-laws or police regulations made in pursuance of the act, should be brought in the corporate name [of the city.] “ The first process in any such action, brought before a justice of the peace, shall be by warrant; and execution may be issued thereon immediately on the rendition of the judgment.” The plea then set out the 5th section of a law or ordinance made by the common council of the city, on the 27th of April, 1832, as follows: “ If any person shall keep a billiard table, shuffle board, Eotable, Faro-banlt, or any other instrument of gaming where, or on, or with which, money, liquor or other articles shall in any manner be played for in said city, or if any person shall keep a disorderly or gaming house in said city, such person shall for every offence forfeit and pay a penalty of twenty-five dollars,” «fee. After setting out portions of the charter and by-law, the defendant averred that before, and at the time when «fee., he was the attorney for the city, duly appointed by the common council, in pursuance of the 26th section of the charter, which authorizes such appointment: that on the 11th of May, ,1840, he, as such attorney, directed to be issued by John Parsons, a justice of the peace in and for said city, a warrant against the plaintiff for a violation of the said 5th section of the laws and ordinances of the city: that thereupon a warrant was issued by the justice, directed to any constable «fee., commanding him in the name of the people «fee., to take the plaintiff and bring him before the justice at «fee., to answer unto the city of Utica in a plea of debt «fee.; which warrant was endorsed «fee., and was delivered to John Pease, a constable «fee., to be executed, who took and arrested the plaintiff -by his body, and kept and detained him in custody by virtue of the warrant, for the time in the declaration mentioned «fee.: which is the same trespass «fee. Verification.. The third flea was substantially like the second. The plaintiff demurred to each of the special pleas, and the court below rendered judgment on the demurrers in his favor. On the trial upon not guilty the jury found a verdict for the plaintiff and assessed his damages at six cents; and judgment having been rendered against the defendant on the whole record, he brought error.
    
      W. McCall, for the plaintiff in error,
    insisted, that the two special pleas were good, and that the court below erred in rendering judgment upon them for the plaintiff.
    
      W. M. Allen, for the defendant in error,
    insisted that the pleas were bad for the' following reasons: 1st, It does not appear by them that the justice who issued the warrant had a right to take cognizance of the matter in any form: 2d, They do not show that the common council had power to adopt the ordinance in question: 3d, Nor do they show that* the defendant in error had violated the ordinance: 4th, They leave the court to intend that the warrant was issued without the preliminary affidavit required by law. (2 R. S. 229, § 19. Laws of ’31, p. 403, §§ 30, 31.)
   By the Court,

Bronson, J.

The plaintiff below takes no exception to the pleas in matter of form, and the only question is, whether they are good in substance. The first objection urged against the pleas is, that .the justice had ■ no jurisdiction to issue the warrant: that neither the act relating to justices’ courts nor the charter of the city give any jurisdiction to a justice of the peace in actions to recover penalties for the violation of a by-law or ordinance of the common council of that city. We are referred to 2 jR. 8. 225, § 2, subd. 3, giving to justices cognizance of “all actions for any penalty not exceeding fifty dollars given by any statute of this statewhich, it is said, does not extend to the case of a penalty inflicted by an ordinance or by-law though made in pursuance of a statute. I do not think it necessary to consider the soundness of the argument, for the first subdivision of the same section gives the justice jurisdiction of all actions of debt, covenant and assumpsit, wherein the debt or balance due, or the damages claimed, shall not exceed fifty dollars ;”.and I see no reason why this provision should be so restricted by construction as to exclude an action of debt to recover a penalty under a by-law. The 40th section of the charter provides for the recovery of a penalty inflicted by the ordinances of the common council in an action of debt, in any court having cognizance thereofand the 42d section of the charter declares, that “ the first process in any such action, brought before a justice of the peace, shall be by warrant.” Although the charter does not, in terms, declare that a justice shall have jurisdiction in actions for penalties under by-laws, as is the case in some other charters to which we were referred, I cannot doubt that the legislature intended these actions should be brought in justices’ courts. The penalty is recoverable “ with costs,” (§ 40;) and it would be very burdensome to a defendant to require the action for a debt which cannot exceed $25 to be brought in a court of record.

The second point was made for the purpose of raising the objection that the act incorporating the city is a private act, and. has not been sufficiently pleaded; but the objection was abandoned on the argument. It was also suggested under this point that the common council could not group several offences in one ordinance or by-law ; but the counsel was also understood to say that he did not rely on this objection.

It was not necessary for the defendant to aver in his pleas that the plaintiff had in fact violated the ordinance. It was the duty of the defendant, as attorney for the city, to sue for the recovery of penalties, and the statute gives him no choice but to proceed by warrant. (§ 42.) If he acts maliciously and without probable cause, the injured party may have redress by an action on the case. But where, as in this case, his motives have not been questioned, it is impossible to maintain that he is liable to an action of trespass and false imprisonment if he happens to be mistaken in supposing that a penalty has been incurred by the person arrested.

The last objection and the one principally relied on by the plaintiff is, that the warrant issued without such affidavit, as is required by the act relating to justices’ courts. (2 R. S. 229, § 19. Statutes of 1831, p. 403, § 30, 31.) But the act incorporating the city was passed since the justice act, and it provides that “ the first process in any such action, [to recover a penalty] brought before a justice of the peace, shall be by warrant.” (§ 42.) The warrant is here given without . oath or affidavit; and the city attorney has no choice to proceed in any other way.' The word is not may, but shall. Under the justice act a warrant cannot issue except upon very special circumstances; and to hold that the attorney must comply with that act, would, in many cases, amount to a denial of all remedy for a violation of the city ordinances. I see no reason why we should disregard, the charter in settling this question. That differs in another respect from the justice act. When a penalty is recovered, execution may issue immediately. on the rendition of the judgment; and if there be no goods or lands, the defendant may be imprisoned in the county jail for a. period not exceeding thirty days. (§ 42.) So far as the charter goes, it gives the rule of proceeding in /suits to recover penalties. Beyond that,- the law and practice of the court in which the action is brought must be followed. There is nothing unusual in this. There are many other cases where the common course of proceeding is either set aside or modified by special legislation.

We are referred to the bill of rights, (1 R. S. 84, § 11,) which provides against unreasonable searches and seizures; and declares that “no warrants can issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” ■ This relates to criminal process, and has nothing to do with arrests in civil suits. We have always had a bill of rights; and yet, until within a very recent period, a man might he arrested on a copias and held to bail as a matter of course, and without any thing more than a mere claim on the part of the plaintiff, unsupported by oath or affirmation, that the defendant was his debtor.

Each of the pleas contains a good answer to the action. The judgment of the court below must therefore be reversed, and judgment must be rendered for the plaintiff in error on the demurrers.

Ordered accordingly.  