Ashley v. Peterson

Paipte, J. Without determining whether a justice of the peace in one county can issue a search warrant to search premises in another, we agree with the respondent’s counsel that the warrant here in'controversy was void, for not particularly describing the place to be searched, as required by sec. 11, art. 1 of the constitution. It would be difficult to hold that the words “the premises of John Doe, alias, in the town of Baraboo, or in the neighborhood thereof, in the county of Sauk,” constitute a compliance with this provision. If the officer could act at all under such a warrant, he might search the premises of any body in the town of Baraboo or in the neighborhood of it. We see no error in the case, except in the form of the judgment; The plaintiff’s counsel, conceiving chapter 124, Laws of 186b, to be applicable, took an absolute judgment for the value of the property and the damages. It would, of course, have been proper if that act was applicable; but we think it was not. The undertaking given by the defendant to retain possession of the property was executed before the passage of that act. It was conditioned according to the law then' in force, which required the judgment for the plaintiff to be in the alternative, for a delivery of the property in case it could be had.' It was for this that the sureties undertook. Their obligation was conditional. And, as the only connection they have with the case arises out of that contract, which we have held gave the right to enter such a judgment against them as the contract contemplated, the legislature could not, by an act subsequent to the execution of the contract, enlarge their liability so as to make it absolute for the payment of the value and damages. See Gallarati v. Orser, 27 N. Y. 324. Although this reason for reversal grows out of the [625] rights of the sureties, yet, if the judgment is to be reversed as to them, it is necessary to reverse it as' to the principal defendant also, unless the sureties were to be discharged entirely. The form of the judgment shonld obviously be the same as to all. The judgment must be reversed, and the cause remanded with directions to enter judgment for the plaintiff in the alternative, according to the law in force at the time the undertaking was given. By the Court. — So ordered.