4 Denio 118 | N.Y. Sup. Ct. | 1847
When certain facts are to be proved to a court of special and limited jurisdiction, as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void, in Whatever form' the question may arise. This is sufficiently established by the cases cited at the bar, as Well as by many others to be found in the books. But when the proof has a legal tendency to make out a proper case, in all its parts; for issuing the process, then, although thé proof may be slight and inconclusive, the process will be valid, until it is set aside by a direct proceeding for that purpose. In one case, the court acts without authority: in the other, it only errs in judgment upon a question properly before it for adjudication. (Matter of Faulkner; 4 Hill, 598; Harman v. Brotherson, 1 De-nio, 537; Vosburgh v. Welch, 11 John. 175; Tallman v. Bigelow, 10 Wend. 420.) In one case, there is a defect of jurisdiction : in the other, there is only an error of judgment. Want of jurisdiction makes the act voidbut a mistake concerning the just weight and importuned of evidence, only makes the act erroneous, and it will stand good until reversed. I think this a sound distinction, though it rests in some degree upon my own authority. The defendant claims the benefit of the distinction; and I think him entitled to it. But it will not help out his case; for although the affidavit was sufficiént in some particulars, it was totally defective in others. It is entirely silent as to the most material fact—the intent to defraud creditors. That thd applicant for the attachment had a debt arising upon contract was sufficiently proved; but the only “ facts and circumstances” set forth as a ground for issuing the process are, that the debtors had made two assignments of their property; and that the assignee was about to remove a part of the property out Of the county; To which it was added; that the debtors said they had-no property, and could pay no debts. There is no fact or circumstance to show—nor is there even the intirhation of a belief—that the debtors had assigned the property, or Were about to rettibve it from the county, with intent to defraud
Judgment affirmed
