17 Barb. 179 | N.Y. Sup. Ct. | 1853
The complaint upon which the defendant founded his application for a warrant was, that the plaintiff, being indebted to him,- “ had assigned, removed or disposed of, or was about to dispose of, his property, with intent to defraud his creditors.” Upon his establishing this charge by satisfactory evidence, in the form of affidavit,' produced before the county judge, that officer was authorized to grant the warrant. Until such evidence should be presented, the judge was expressly prohibited, by the terms of the act, from taking jurisdiction. His power has been aptly represented as contingent.
I think, too, the judgment of this court reversing the proceedings, was conclusive upon the question of jurisdiction, as between these parties. If the judge had authority to issue the warrant, it was the duty of the court to affirm the proceedings. If, on the other hand, the proceedings were coram, non judice, it was the duty of the court to declare them void. This was the only question in judgment. The only power of this court was, in the exercise of its supervisory jurisdiction, to see that the judge had kept himself within the bounds prescribed by the legislature. If he had, then Ms decision upon the' matters thus confided to him, was final. It having been adjudged that the' judge had; in fact, transcended his authority in issuing the warrant, I suppose the question' cannot again be litigated:
But, assuming that it is, still an open question, I think the warrant was issued without authority. Evidence tending to establish the charge, even though it might be regarded as slight and uncertain, would perhaps be enough to Sustain the warrant; upon the question of jurisdiction. But there must be some legal evidence calling for the judgment of the officer upon its sufficiency. Until such evidence was produced he had not even colorable authority to proceed. I have sought in vain for tMs evidence in the affidavit upon which the warrant was issued. Two facts only are relied upon as furnishing tMs evidence. The first is, that the debtor had recently had a legacy left him of ¡$600; and he refused to appropriate any part of it to the payment of the complainant’s debt. And, secondly, that when
In respect to what is alleged to have been said by the debtor to the officer when he served the summons, it is proper to remark that, although it is positively stated in' the complainant’s-affidavit, it is not likely that he had any personal knowledge of what was said. But, upon a question like this, perhaps it is proper to assume that the complainant knew the fact to which he testified, even though we may be convinced from the circumstances that he only knew it from what the officer had told him. Even then, the fact thus proved -would furnish no legal evidence justifying the inference that the debtor contemplated a fraudulent disposition of his property. At the most, the declaration
The warrant being void, it could not protect the defendant When sued as the party who directed the arrest. In Collamer v. Elmore, cited by Willard, J., in Mosher v. The People, (5 Barb. 575,) it was held, that where a warrant of arrest had been issued upon an insufficient affidavit, an action for false imprisonment might be sustained, even without reversing the proceedings upon certiorari. (See Prosser v. Secor, 5 Barb. 607.) It has often been held that the officer who issues process without jurisdiction, and the party at whose instance such process is issued, are liable as trespassers for taking property under such process. (Merritt v. Read, 5 Denio, 352. Vosburgh v. Welch, 11 John. 175. Miller v. Brinkerhoff, 4 Denio, 118.)
I am therefore of opinion that there was error in holding that the warrant was a protection to the defendant in making the arrest. That the warrant was issued without legal authority was res adjudícala, and, besides, the affidavit upon which it was issued, being before the court, showed that the proceedings
Watson, Wright and Harris, Justices.]