Thomas Bennett against Charles Ward

Thomas Bennett against Charles Ward. NEW-YORK, Nov. 1805. ON certiorari to a justice’s court, in a suit under the 19th section of the “ act to regulate highways,” by which it is ordained, that the penalty of ⅞>5, imposedfor obstructing roads, shall be recovered “ in the name of any person who shall “ make complaint thereof, before any justice of the peace of “ the county where the offence shall happen, upon the oath “ of one or more credible witnesses, and levied by distress “ and sale” &c. Cadey assigned for error, that by the return, it appeared, a regular action of debt had been instituted, instead of the summary mode prescribed by the statute. This point, he said, had been already ruled, in a case of Hamilton v. Burton, decided in April, 1800. For where an act creates a new of-fence, and points out how the penalty inflicted is to be recovered, no other method can be pursued. 4 Bac. Ab. Old. Ed. 654. Rex v. Right, 1 Burr. 543. An advantage resulted, he urged, from the adoption of the summary proceeding ordered by the law, because, in such cases, the evidence is necessarily returned. Gold contra. It appears that the parties agreed to go to trial, and whatever advantage might have been taken of this objection, had it been made at a proper time, is now waived. Cadey in reply. If the magistrate had not authority to ⅛⅛ cognizance of the cause in this manner, consent will not _ . . , . . ’ give him jurisdiction. Besides, the levy is, alter conviction, to be by warrant of distress, and upon a regular judgment in debt, the usual writ of execution ought, perhaps, to go. If, in a statute, a clause creating a new of-fence, and inflicting a penalty, be so defectively worded, that by one part it appears to be recoverable in a summary way, and by another according to the usual course of proceeding, the latter shall be preferred. All statutes giving summary modes of recovery, are to be strictly construed. 1 Rev. Laws. 595. [MAJORITY — Kent, C. J.] Per curiam, delivered by Kent, C. J. The suit below, was an action of debt, conducted according to the regulations of the ¿10 act, and was brought to recover the penalty or forfeiture of f>5, under the 19th section of the act to regulate highways, which declares, that “ If any person shall obstruct “ any highway, &c. such person so offending, shall forfeit “ for every such offence, ⅜5, to be recovered, with costs of suit, in the name of any person who shall make complaint “ thereof before any justice of the peace fkc.upon the oath of “ one or more credible witnesses, and levied by distress and “ sale of the goods of the offender, by warrant from the justice, to be directed to any constable of the town, &c. and the “ constable is required t.o pay such penalty into the hands of u the commissioners of highways, &c. to be applied in im-ct proving the public roads and bridges in such town.” The question is, whether the above recovery ought to have been in the manner prescribed by the ¿10 act, or ought to have been in a summary way, as the section under which it was had, would seem to prescribe ? The section in question is very defectively drawn. , One part of it seems to contemplate a recovery by an action or suit in the ordinary mode, and the other part of it, so far at least, as relates to the collection of the money by the constable, uses language applicable only to cases of summary convictions. And where a statute admits of two constructions, it is advisable to give it that which is consonant to the ordinary mode of proceeding before magistrates, as being the most familiar to them, and because in that, the trial by jury is secured. Summary convictions are authorized frequently in the English laws, and they are required in three different cases in the act before us, viz. under the 11th, 12th, and 23d sections. But this mode of proceeding is always strictly construed by the courts, and is not to be adopted but where the language of the law is positive and Unequivocal. The judgment below must be affirmed.