Field v. Parker

Morgan, J.: The form of execution complies with the direction of the statute,* and has been in use for over thirty years. It is in the form [344] prescribed in the text books and printed for use of justices ever since the enactment of the Revised Statutes. * The justice who issued it has general authority to issue executions upon judgments in. his court, and nothing in it indicates a want of jurisdiction in the justice to render such a judgment. Indeed, at the bottom we have the information that the judgment is for debt, $100; costs, $3.55; judgment, $103.55. It is, however, held by the judge at Special Term, that it should also appear that the cause of action is one over which the justice had jurisdiction. Since the forms of action have been abolished by the Code, it would be somewhat difficult for the justice to comply with such a rule. All actions now are actions on the case, and many of them do not come within the jurisdiction of the justice. Must he state that the case before him was upon a note, or upon some other obligation coming within his jurisdiction ? In my opinion, it is sufficient in this case that the execution is regular and legal in form, and issued by a justice who has general authority0to issue executions upon judgments in his court. Ever since the case of Savacool v. Boughton, † the courts have been inclined to disregard many of the niceties formerly insisted upon in relation to the sufficiency of process to protect ministerial officers; and the principle of that case would certainly support the execution in this case as sufficient to protect . the officer. If the process be such as the court or officer has general jurisdiction to issue in proper cases, the officer is protected. He need not look behind his process to know that there is authority to issue it. ‡ The officer is protected, although the court or officer had no jurisdiction in fact, if the defect does not appear on the face of the process.§ In Cowen and Hill’s notes to Phillip’s Evidence,|| the question is fully discussed and the conclusion reached, that to expose the officer, the want of jurisdiction over the subject-matter must not only exist, but appear upon the process. As to the rule laid down by Marcy, J., in Savacool v. Boughton,¶ the author says it is expressed too cautiously, whereas his principle would [345] have fully warranted him in saying, within Gwinne v. Pool, that to expose the officer, the want of jurisdiction over the subject-matter must not only exist, but must appear on the process, unless he had clear knowledge of the facts some other way. The case of Gwinne v. Pool was a remarkable case, and fully considered. It may be found in black letter, reported in 1704 by Lutwytelie, * and afterward translated by Nelson.† I will cite a single paragraph of the opinion by Baron Powell : “ ’Tis true, when actions are brought in inferior courts, the plaintiff must always entitle such court to jurisdiction by showing that the cause did arise infra j-urisdictionem, / but when a justification is made of a supposed trespass under any warrant or judgment given in such court, all the proceedings there shall be intended regular until the contrary is shewed; and therefore, when the defendant justified by a warrant out of the Coúrt of Admiralty, and did not aver that it was for a maritime cause, the justification is good; and it was my Lord Hale’s opinion that it is sufficient to show the warrant which the officer is bound to obey, and is not obliged to show that the cause of action did arise i/nfra jurisdietionem.” And the rule is thus stated by Savage, J., in Rogers v. Mulliner.‡ He says :• “ Ministerial officers are not responsible for executing any process, regular on its face, so long as the court from which it issues has general jurisdiction to award such process.” Now, justice’s courts have general jurisdiction to issue executions to enforce the collection of judgments rendered by them. The execution in this case is regular on its face, and no objection is made, except the single one that it does not affirmatively show that the action in which the judgment was rendered was in fact within the jurisdiction of the justice. It does appear that the judgment is for a debt of $100, if we have liberty to refer to the written memorandum at the bottom of the execution. So far, it appears affirmatively that the justice did not render a judgment in an action for slander or malicious prosecution, or other prohibited cause of action, nor go beyond his jurisdiction as to the amount. On the whole, I am of opinion that this form of execution is sufficient to protect the constable. It is regular on its face, and one which a justice of the peace has general authority to issue to. enforce [346] judgment in his court. We ought not to encourage a technical objection of this nature, unless compelled to do so by undoubted authority. It would show us less liberal in the protection of ministerial officers than the judges were 150 years ago. There is no occasion, no necessity, and no reason why we should disturb the universal practice in this State in regard to the forms of executions in justice’s courts. I do not feel compelled, by the authorities cited, to uphold the objection. None are cited directly on the point, and unless some direct authority is found which we are bound to respect, I think we ought to overrule the objection. It is admitted that there is a strange confusion of authorities on the general subject, and they are collected and commented on by Cowen and Hill, in their notes .to Phillips’ Evidence, at the pages already cited; but the conclusion finally reached by them is reasonable and just, and is, I think, correctly stated in 2 Wait’s Law and Practice, 49. The order of the Special Term should be reversed and a new trial denied. Present — Mullin, P. J., Smith and Morgan, JJ. Order reversed and new trial denied. Footnotes [*] 2 R. S., 249, §131. [*] 2 Wait’s L. and P., 714; Cowen’s Treat. (4th ed.), § 1568; Benedict’s Treat., 480. [†] 5 Wend. ,170. [‡] 2 Wait’s L. and P., 49. [§] Paige, J., in Fullon v. Hunter, 1 Barb., 555. [||] 1007 to 1009, part 2. [¶] 5 Wend., 170. [*] 2 Lutw., 938, 1560. [†] See Kelson’s Translation, 290. [‡] 6 Wend., 602.