3 Barb. 175 | N.Y. Sup. Ct. | 1848
By the Court,
It is not necessary to decide what the plaintiff’s rights would have been had he rested them upon any of the exceptions which he took in the course of the trial, before the nonsuit. By proceeding in the trial, after the exceptions, he may be regarded as declining to put his cause on any of those intermediate exceptions, and as standing now in the same situation as though he had in the first instance produced all the proof which he gave on the trial. The examination of the intermediate exceptions, not involved in the exceptions to the decision granting the nonsuit, would be useless speculation; as the decision here must be made upon the whole case as it stood when it was decided by the judge. At this time the whole proceedings before the supreme court commissioner were produced in evidence, and it is no matter whether the plaintiffs were obliged to produce all the evidence or not. Having done so, it constituted their case upon which the judge decided; and this decision, and the premises upon which it was founded, are what we are called upon to review. The judge granted the nonsuit on the ground that the case, including the affidavit, showed that the supreme court commissioner had.no authority to grant the warrant against McConnell, and consequently no jurisdiction to entertain the proceedings against him founded on the warrant, and therefore, that the bond on which this suit is brought, having been coerced from the defendants by force of such proceedings, could not bind them. The defect in the authority of the officer to issue the warrant was traced to the insufficiency of the affidavit on which the warrant was founded. Against this conclusion the plaintiff’s counsel makes the following objections : First. That the decision of the supreme court commissioner upon the sufficiency of the affidavit at the time of issuing the warrant, and his decision upon the subject of his jurisdiction, when it was questioned, after the return of the warrant, were conclusive upon the subject of juris
The plaintiff’s first point presents questions upon which there would, at first view, appear to be some diversity of decision. I have not the time to review the various decisions on the subject of jurisdiction, nor the presumption to attempt it, though it appears to me that the difficulty of examining such questions might be diminished, by a proper arrangement and classification of the several adjudications upon the different branches of this general subject. Cowen & Hill, in their valuable notes to Phillipps’ Treatise on the Law of Evidence, which were referred to by the counsel on both sides, on the argument of this cause, have collected a vast number of decisions on the subject of jurisdiction, and have done much towards arranging them, under different heads, and have thereby conferred a great benefit on the profession. Still, every person, after the examination of that work, feels the pain of uncertainty and confusion, and regrets that the learning, talent, and industry, devoted to that compilation, had not been employed in writing a system of evidence, instead of compiling a digest of notes to another work.
It is a general principle that the jurisdiction of all courts and officers may be questioned whenever the proceedings or decisions of such courts or officers are made the foundation of any claim, (Borden v. Fitch, 15 John. Rep. 141, Thompson, Ch. J. Mills v. Martin, 19 Id. 33, Spencer, Ch. J. Latham v. Edgerton, 9 Cowen’s Rep. 227, Sutherland, J., and the other
If the statute had barely provided that in cases where the defendant had committed any of the specified acts to defraud his creditors, the officer might issue his warrant against the defendant, and inquire into the matter, then the officer would have some pretence for exercising judicial discretion, and could bring his case within that of Brittain v. Kinnaird. And if the defendant came before him and contested the facts charged, and they were decided by the officer, then it might be claimed that the case was within the rule laid down in Cowen <fc Hill’s Notes, page 1201, which is, “ That where the matter constituting jurisdiction is the same with that which is to be judicially heard and determined, on the trial of the very issue in the cause ; in other words, whenever such matter makes a part of the merits, it is not the subject of collateral objection, but is reversible by direct proceedings only, as on error, certiorari, &c.”
The plaintiff’s second point is founded upon the assumption that McConnell, by answering the matter charged against him, and then again by giving the bond to prevent the issuing of the warrant of commitment, voluntarily submitted himself to the jurisdiction of the officer, and to his requirements, and is
The plaintiff’s third point involves an inquiry into the sufficiency of the affidavit upon which the warrant was issued, to give the supreme court commissioner jurisdiction, or power to issue it; which is at once the simplest and most important point in the case. The 4th section of the act under which the warrant in this case was issued, (Sess. Laws of 1831, p. 396,) declares that no warrant shall issue, unless satisfactory evidence be adduced to such officer, by the affidavit of the plaintiff, or some other person, establishing one or more of the following particulars, (subd. 1 to 4.) By the 5th section — Upon such proof being made, to the satisfaction of the officer, he shall issue his warrant, &c. Now it is admitted that whenever there is any evidence, by affidavit, going to establish any of said particulars, and which furnishes any proof of them, the matter is brought within the judicial cognizance of the officer, and his decision, on this proof, is conclusive until reversed. But it is denied that he has a right to act on, or be satisfied by, any thing short of the evidence and proof required by the statute. He must be satisfied as a judge, upon legal evidence and proof. The defect in the affidavit under consideration is, that it is not evidence or proof, tending to establish any of the particulars mentioned in the statute. Suydam, on all of these points, speaks only as to his information and belief. This is not evidence or proof of the facts mentioned. Suydam may have
For these reasons, the motion for a new trial must be denied, with costs.
Motion denied