Case v. Redfield

By the Court, Sutherland, J. The evidence offered that a copy of the attachment was not left at the dwelling house, or last place of" abode of the defendant, was properly excluded. The attachment was returned regularly served, and it is the return which gives jurisdiction to the justice, and authorizes him to proceed. The statute provides, Laws of 1824, p. 296, § 25, that on the return of the attachment, the justice shall proceed to hear, try and determine the cause in the same manner as on summons returned personally served. If a constable makes a false return upon process, the judgment cannot be avoided on that ground; he is responsible in an action for the false return, but the return itself, whether true or false, gives jurisdiction to the magistrate, and authorizes him to proceed. 14 Johns. R. 481. Cowen’s Treat. 275. The court were also correct in deciding that the judgment given in evidence by the defendants, in favor of Pardon Sen [400] nett and Albert Sennett, (under which the defendants claimed a right to the wheat as purchasers) was void as against the creditors of Albert Sennett; it was judgment upon confession before a justice of the peace, under the 12th and 13th sections of the act of 1824, p. 286. The act requires that the defendant shall set forth the items of the demand for which he confesses judgment, as far forth as he may be able so to do. The construction of this act has been the same as the act of 1818, which required a particular statement and specification of the nature and consideration of the debt or demand to be stated. To say it was for a promissory note or book account, or work, labor and services, without dates or sums, is communicating no useful information to the opposite party to enable him to investigate and ascertain the real character of the transaction. 16 Johns. R. 150. The plaintiff in that judgment being the purchaser under it, he purchased with full knowledge in judgment of law, if not in fact, that it was void, and cannot therefore be protected as a bona fide purchaser, admitting that a stranger might have been. The court erred in this branch of the case. 2 Caines, 61. 1 Cowen, 622, 644. 9 id. 61. They, however, left the question to the jury on the question of actual -fraud, charging them that the defendants were entitled to their verdict, if they believed there was no fraud in that' judgment. By finding a verdict for the plaintiff, the jury therefore have said that that judgment was fraudulent in fact, and the plaintiff was not injured by the error of the court. Judgment affirmed, with costs.