Webber v. Gay

By the Court, Nelson, Ch. J. It was decided in Clark v. Luce, 15 Wendell, 479, that an attachment under the 33d section of the act of 1831, Statutes of 1831, p. 403, might issue against non-residents of the county without any affidavit. In terms, hovever, the attachment must be returnable in not less than two days, and must not run more than four days from its date. And if a defendant be proceeded against otherwise, the statute declares the justice shall have no jurisdiction. The counsel for the defendants insist that in this case the attachment was issued under the 34th section, and if so, the return is undoubtedly regular. If it may be issued against non-residents of the county under this section, the preliminary steps before the justice are probably sufficient, though the affidavit is quite meagre. That section provides, that in addition to the cases in which a suit may be commenced under the revised statutes by attachment before a justice, (this is the import,) it may be so commenced for the recovery of a debt not exceeding $50, whenever it shall satisfactorily appear to the justice, that the defendant is about to remove from the county his property, ¿-c. whether such * defendant be a resident of the [*487 ] state or not. The language doubtless is broad enough to embrace the case of non-resident defendants ; but I think it should be construed as intended to apply, exclusively, to residents of the county. The previous section had already provided for the former, and, as has been held in Clark v. Luce, authorizes the issuing without any preliminary proceedings. The 34th section, therefore, could not have intended to prescribe a like remedy, fettered with these proceedings, for the sake of affording the alternative to the creditor; it would have been worse than useless. As some of the previous provisions recognized a distinction in legal proceedings before the justice favorable to residents of the state, the clause was, probably, thrown in for the purpose of repudiating it in the particular case. The limitation of time in the return of the attachment against non-residents, was to afford a speedy opportunity for trial; was intended for their convenience, and should be upheld if possible, consistent with a reasonable interpretation of the several provisions. 2. I think the learned judge erred as to the officer. I am not aware the [487] court has ever looked beyond the process with a view to see if he was cogni zant of the irregularity. The point was thrown out by the chancellor in Parker v. Walrod, 18 Wendell, 519, but no definite opinion expressed. The general rule as there admitted is, if the justice has jurisdiction of the subject matter, and if the process is regular upon .its face, he is protected. To go beyond this, would lead to a new and troublesome issue, which would tend greatly to weaken the reasonable protection to ministerial officers. Their duties, at best, are sufficiently embarrassing and responsible ; to require them to act or not, at their peril, as they may be supposed to know or not the technical regularity of the party or magistrate, seems to me an innovation upon previous cases, and against the reasons and policy of the rule. The experience of the officer will soon enable him to determine whether the process is in regular form or not, or he can readily obtain the ne- [ *488 ] cessary advice ; but he must be presumed wiser than *the magistrate if even a knowledge of the proceedings would enable him to decide correctly, if they happened to be erroneous. I think a new trial should be granted as to the officer. Ordered accordingly.