20 Wend. 236 | N.Y. Sup. Ct. | 1838
I think it does not follow, of necessity, either that the court wanted jurisdiction, or if they did,, that the sheriff had knowledge thereof. The court had jurisdiction of the subject matter. Leonard was in on a ca. sa. in assumpsit for less than |500, which entitled him to his discharge instantly, on giving the plaintiff, Hart, fourteen days’ notice. 2 R. S. 31, § 1, 3. This notice was entirely for the plaintiff’s benefit, and he might, therefore, waive or take short notice by consent. That would make the proceeding regular in respect to every body. JYon constat but that he actually gave such consent : and if he did not, non constat that the sheriff knew he had not. I think we should intend every requisite circumstance to make the proceeding good in favor of the sheriff, inasmuch as the order of discharge was perfectly regular on its face. Of itself, it is not denied to have been a complete protection, and see Fullerton v. Harris, 8 Greenleaf, 393.
In this view, it is not necessary to say whether actual knowledge that there was a want of jurisdiction over the person would affect the sheriff. I am aware the authorities leave it open to contend that, in certain cases, where there is a want of jurisdiction over subject matter or territory, and that known to the officer, he is liable ; and it is not necessary to deny that it may be so ; nor that he might be .implicated by actual participation in a notice mischievously irregular. But such a case is
New trial denied.
