Dakin v. Hudson

Curia, per Savage, Ch. Justice. The defendant makes five objections to the sufficiency of the declaration. First, it is said, the execution should have been issued against Bristol and wife ; and secondly, that interest is not recoverable. If these objections were well founded, the sheriff would not, therefore, be at liberty to suffer an escape ; nor would he, if the third point be tenable. The declaration must describe correctly the record and proceedings it purports to set out; and if the record or proceedings produced on trial do not correspond with the description, the objection may be taken for the variance. But it is objected, fourthly, that the declaration does not give jurisdiction to the surrogate ; and it seems to me that this objection is unanswerable. The construction given to the act, (1 R. L. 448, s. 11, 12,) by the late chancellor Kent, (4 John. Ch. Rep. 410, 11,) is, that the surrogate granting administration, has power to call the administrator to account. I think jurisdiction belongs to that surrogate’s court alone which granted the administration. It is not averred in this declaration, either that the surrogate of Columbia county granted administration, or that he had jurisdiction cf the matter. The rule is, that the pleading, relying on a proceeding of an inferior jurisdiction, must set forth the facts necessa [225] ry to give*jurisdiction ; and it may then say, taliter pro-cessurn fuit, &c. Such summary proceedings are contrary to the course of the common law. The surrogate’s court is entirely a creature of the statute. It should be shewn to the court affirmatively, therefore, that the surrogate had power to make the decree ; that the facts upon which he acted, gave him jurisdiction of the subject matter, and of the persons before him. There is nothing in the last objection, that the counts of the declaration are repugnant. The defendant is entitled to judgment on the demurrer, with leave to the plaintiff to amend on payment of costs. Judgment for the defendant.