Hart v. Dubois

By the Courts Co wen, J. I think it does not follow, of necessity, either that the court wanted jurisdiction, or if they did,, that the sheriff had knowledge thereof. The court had jurisdiction of the subject matter. Leonard was in on a ca. sa. in assumpsit for less than |500, which entitled him to his discharge instantly, on giving the plaintiff, Hart, fourteen days’ notice. 2 R. S. 31, § 1, 3. This notice was entirely for the plaintiff’s benefit, and he might, therefore, waive or take short notice by consent. That would make the proceeding regular in respect to every body. JYon constat but that he actually gave such consent : and if he did not, non constat that the sheriff knew he had not. I think we should intend every requisite circumstance to make the proceeding good in favor of the sheriff, inasmuch as the order of discharge was perfectly regular on its face. Of itself, it is not denied to have been a complete protection, and see Fullerton v. Harris, 8 Greenleaf, 393. In this view, it is not necessary to say whether actual knowledge that there was a want of jurisdiction over the person would affect the sheriff. I am aware the authorities leave it open to contend that, in certain cases, where there is a want of jurisdiction over subject matter or territory, and that known to the officer, he is liable ; and it is not necessary to deny that it may be so ; nor that he might be .implicated by actual participation in a notice mischievously irregular. But such a case is 238 not made out here. Independent of participation, how is he to know but the usual notice was waived as it always may be. Take the case where a justice has no jurisdiction without process served in time and duly returned; how is the officer holding an execution where no summons was served, to know that it was not waived 1 Short of a guilty participation, I know not how he is to be affected. Suppose an officer to be told all about the original irregularity ; how is he to know that the information is true 1 Olliet v. Bessey, T. Jones, 214. New trial denied.