Brown v. Mason

40 Vt. 157 | Vt. | 1868

The opinion of the court was delivered by

Barrett, J.

Sec. 79, ch. 33, Gen. Stat., provides that the arrested debtor may cause reasonable notice to be given to the plaintiff that he will appear, and thereupon he may appear before one of the assistant judges,' &c.

The debtor did give a notice, and in pursuance of it, he did appear before Judge Oakes, and the judge has certified the proceedings before him, and his adjudication. He was authorized to certify said proceedings. He says that “ after proof of due notice to the adverse party, and after full hearing, it was adjudged,” &c. For the purposes of the proceeding, it was for the judge to pass upon the question of reasonable notice. He had jurisdiction of the subject, and, on the presentation of the application, with the proof of due or reasonable notice, he had jurisdiction of the parties to every intent requisite to authorize him to proceed judicially to hear and determine the subject. This being so, his adjudication would be effective of the immediate purpose contemplated,- viz: not only to justify, but to require the sheriff, on the certificate provided by law, to release the prisoner from the arrest under which he .was holding him. This cei’tificate seems substantially to embody a statement of all the elements necessary to constitute the proceeding before him, and his adjudication valid and effectual. This brings the case fully within the law of the subject as stated by Judge Story in Thurston v. Martin, 5 Mason, 500, "where a mere ministerial officer acts under the authority of a court, or other board or tribunal, of a limited jurisdiction, then if the act be beyond their jurisdiction, he is, or may be, liable in trespass. But when there is jurisdiction over the person and the subject matter, then he is not liable for any irregularity or mistake in the exercise of that jurisdiction.”

Upon this principle, as illustrated and applied in Raymond v. Sutherland, 3 Vt. 494, we think we are warranted in holding that the defendant might act upon the adjudication of Judge Oakes, as shown by his certificate, without the peril of responsibility for impropriety or irregularity in the proceedings not apparent, and not precluding the judge from acting at all.

Judgment affirmed.