Adkins v. Brewer

Curia, per Savage, Ch. J. The defendants are called on directly, not collaterally, to shew why they have undertaken to dispose of the plaintiff’s property. They must then show a lawful authority. A power to act is the first thing to be shewn by a Court of limited and special jurisdiction. To give the Justice jurisdiction, it must appear that the person against whose property an attachment is sought, is either concealed within the county, with the intent mentioned in the act, or has departed, or is about to depart the county, with the like intent. In Van Steenburgh v. Korts, (10 John. 169) the Court seem to consider the proof of this necessary to confer jurisdiction ; and Spencer, J. takes the distinction between proof [209] before a Court which is to give it jurisdiction, and before a Court that already has jurisdiction. In Vosburgh v. Welch, (11 John. 175) the Court say, the Justice must be considered as having issued the attachment without any proof whatever of the departure or concealment required by the act; and, of course, without authority. The rule as to the Justice’s liability, is, that when he has no jurisdiction whatever, and undertakes to act, his acts are coram non judice, and void—equally so ás if he was not a Justice. If he has jurisdiction, but errs in exercising it, then bis acts are not void, but voidable only. In the former case he is personally liable—in the latter not. (17 John. 146. 2 John. Cas. 27. 14 John. 246. 19 John. 39.) I do not consider this case as coming within the rule that an officer is presumed to have done an act, the omission of which would render him liable for negligence. There is presumptive proof, at least, that no evidence was taken by the Justice, and positive proof that no security was taken, except in one cause out of four. The sale by the constable, after the other executions were satisfied, could not be justified, except upon the authority of these executions; and as they were void, there was no authority whatever: all persons concerned were trespassers. The judgment of the Court below must be reversed. Judgment reversed.