Meek v. Pierce

By the Court, DixON, C. J.

Mrs. Meek, the wife of the plaintiff, was not a competent witness in his behalf, within the cases of Birdsall v. Dun, 16 Wis., 235 , and Hobby v. The Wisconsin Bank, 17 Wis., 167 . She was not his agent; or if she was, not in the sense of those decisions. There was no employment, no delegation of authority, express or implied, by which she was empowered to act for or bind him in respect to the matters in controversy in this action.

The warrant was not void. It was not what is termed a traveling warrant. It did not direct the officer “to search all suspected places;” nor, as in Sandford v. Nichols, 13 Mass., 286, to search the houses or stores of several different persons. It only authorized the search of the dwelling house of the plaintiff, and of “ the granary, outbuildings, or straw stacks upon the premises'.” It would destroy the utility of the proceeding, if. beside the building principally named, all other buildings and places of concealment upon the same premises, occupied in connection with it and by the same person, could not also be searched, and by virtue of the same warrant.

It is clear that at common law a justice of the peace had a right to direct his warrant to any particular private person by name. 4 Blacks. Com., 291; 1 Hale’s Pleas of the Crown, 581; 2 id., 110; 2 Hawkins’ Pleas of the Crown, ch. 13, sec. 28; Rex v. Kendall, 1 Ld. Raym., 66; Kelsey v. Parmelee, 15 Conn., 265 . This authority extended as well to search warrants as others. Blatcher v. Kemp, 1 H. Black., 15, in notis, was the case of a search warrant, and no attempt was made to distinguish it from warrants of a different kind. With us, therefore, the only question is, whether this common law power has been restrained or taken away by statute. For *303 when the statute authorizes a magistrate.to issue a warrant in a proceeding for crime, tbe presumption is that be may do so in tbe manner authorized by tbe common law, unless a different mode is prescribed by the statute.

And here it may be observed,' that, tbe provisions of sec. 33, chap. 120, R. S., quoted by counsel for tbe defendants, are wholly inapplicable to proceedings of this nature. They apply exclusively to civil process. At common law, justices of tbe peace had no civil jurisdiction, and in conferring it upon them by statute, such express statutory provision for the service of civil process by a private person became necessary in order to give justices tbe same power over such process as they bad, at common law and without tbe statute, over criminal process. The question turns, therefore, upon the effect of sec. 3, chap. 173, R. S., entitled “ of search warrants, and proceedings thereon.” That section provides that “all such warrants shall be directed to the sheriff of the county, or his deputy, or to any constable of the county, commanding such officer to search,” &c. If it was the intention of the legislature, by these words, to abrogate this common law power of magistrates, then the direction to the defendant Udison was unauthorized and void, and the warrant was no protection for his acts. If, on the other hand, such was not the intention, then the justification was complete, and the circuit court erred in instructing the jury to disregard all evidence in respect to the search warrant. The court is of opinion that such was not the intention of the legislature. It is a safe and established principle in the construction of statutes, that the rules of the common law are not to be changed by doubtful implication. To give such effect to the statute, the language must be clear, unambiguous, and peremptory. Sedgwick on Stat. & Const. Law, 318. Were we to hold the common law rule changed, it would only be by implication, and as we think, very doubtful. The language employed is not inconsistent with the idea that the rule of the common law is still to prevail. There are no negative words *304 —none which prohibit the directing of the warrant to a private person. If such prohibition had been intended, a very slight change in the phraseology of the statute would have placed such intention beyond doubt. It required but the introduction of the word only, or some word or words of equivalent import. As it is, we deem it safer and more in harmony with sound rules of statutory construction, to hold that such was not the intention; and accordingly vre hold that the warrant was properly directed to the defendant Edison.

Judgment reversed, and a new trial awarded.