19 Johns. 39 | N.Y. Sup. Ct. | 1821
Justice, delivered the opinion of the Court. I had no doubt upon the trial that the conviction given in evidence by the defendant was a complete protection to him, as to every thing set forth in it, unless it was shown that the defendant had either exceeded his jurisdiction, or had not jurisdiction of the person of the plaintiff. I consider it perfectly well settled, that to justify an inferior magistrate in committing a person, he must have jurisdiction not only of the subject matter of the complaint, but also of the process and the person of the defendant. This point was fully and ably discussed in Borden v. Fitch; (5 Johns. Rep. 121.) and it was decided, that a judgment of divorce rendered by the Supreme Court of Vermont was void, because it had not jurisdiction of the person of. the defendant. The authorities are numerous to this point. (5 Johns. Rep. 41. 8 Johns. Rep. 90. 197. Kirby’s Rep. 119. 1 Dallas, 261. 1 Day’s Con. Rep. 40, 45. 2 Wils, 386. 2 Str. 993.) If a Court of limited jurisdiction issues a process which is illegal, and not merely erroneous ; or, if a Court, whether of limite
Was the plaintiff legally before the Justice ? I consider the process issued by the defendant as unexceptionable ; it had no seal, and there is nothing in the act requiring it. The constable returned upon it, that he had served it by reading. It appeared in evidence that the plaintiff was never before the Justice.; that the process was served by reading it to the plaintiff in the presence and hearing of his fa- ’ ther, who now prosecutes as guardian ad litem to his son. The father requested the constable to delay the return of the process, until the next day at 10 o’clock, as he wished to take counsel, and that he would attend before the Justice the next day for his son. This conversation took place when the officer served the process, and in the plaintiff’s hearing and presence, and he did not object to the arrangement. The father appeared with counsel before the Justice, and objected to the process and the manner of its being served, and insisted that the plaintiff ought to have been brought personally into Court; these objections were overruled, and then Gale Bigelow withdrew with his counsel.
It is á settled principle, that whenever a statute confers a new power upon Justices of the Peace, they must proceed in the mode prescribed by the statute. Various British statutes confer power on Justices of the Peace, to inflict penalties for offences, on conviction, without requiring that the party should be summoned or compelled to appear. In 4th Bl. Com. 382., it is said, the Courts of common law have thrown intone check upon them, (summary convictions,) by making it necessary to summon the party accused before he is condemned; and it is now held to be an indispensable requisite. (2 Ld. Raym. 1405. 1 Salk. 181.) It is evident, that the summoning of the accused, was not specifically required;
Judgment for the plaintiff