Bowman v. Russ

6 Cow. 234 | N.Y. Sup. Ct. | 1825

Curia, per

Savage, Ch. Justice.

The question is, whether the warrant of two justices to seize the property of a man, for leaving his wife and children a charge upon the towm, is a good justification in an action of trespass, where it is admitted upon the record, that he had not left his wife and children such charge.

In pleading the proceedings of an inferior court, it is necessary to state sufficient to give jurisdiction to the court, and then the plea may say, such proceedings were had, SfC. ; but here, it is not averred that the plaintiff had absented himself, &c.; the very fact upon which alone the justices had power to proceed. According to the point, insisted on by the defendants, the justices may proceed against any man, and take from his own possession the re-ry property with which he is contributing to the support of his family.

In the case of Frary v. Dakin, (7 John. Rep. 75,) the plea of an insolvent discharge was held ill, because it did not state that three fourths of the creditors had signed the petition, which was necessary to give jurisdiction. In Morgan v. Dyer, (10 John. 161,) the plea omitted to state that the defendant had been an inhabitant of the county for three months before presenting the petition, or was in prison; one of which was necessary to give jurisdiction under the act of 1811 ; and the plea was held ill for that reason. In Wyman v. Mitchell, (1 Cowen, 316,) it was not stated in the plea, that the defendant was an inhabitant of the county when he made his application; although it stated that, at, &c. within the county, he was an insolvent debtor within the meaning of the act, yet, being an inhabitant was necessary to give jurisdiction, and the plea was held ill.

According to these decisions, the pleas in question are clearly bad. Suppose the plea in Wyman v. Mitchell, had not been demurred to ; but the plaintiff had replied that the defendant, when he applied to the first judge of Alba-1 ny, was not an inhabitant of the county; surely that fact admitted, would put an end to all pretenee that the discharge was valid. So here, as to the pleas to the first, second and fourth counts, the fact being admitted, that when these proceedings were had against the plaintiff, he had not been guilty of the misconduct which alone gives t6 the justices power to proceed against him, it clearly follows that their proceedings were coram non judice, and void.

If I am right, judgment must be given for the plaintiff on both demurrers. The justifications are all defective in themselves.

Judgment for the plaintiff.