Cooke v. Reinhart

The opinion of the court was delivered by Gibson, C. J. Had the motion to quash been in time, it must have prevailed, for it is certain that a writ of. error is the proper remedy in a case like the present. To quash, however, is not of right but by favour of the court; and a motion to that effect comes with an ill grace after the delay of two terms. Neither can we- say that the record is not removed. The certiorari is a writ of-error in respect of every thing but form; and as the record is actually certified, there is enough of substance in the writ .to enable us to .proceed. We are, therefore, to determine the cause on the exceptions. The proceedings were quashed by the court below; 1. .Because other proceed [322] ings for the same cause had been previously, prosecuted to judgment. 2. Because, as it is said, the.'inquest have not found that the defendants were in possession, nor that those who are said to be tenants of the debtor, had come into possession under him; and, 3. Because legal notice of the sale is not, it is said, either found by the inquest or averred in the plaint. The rule that no intendment shall be made in favour of proceed- ■ ings which are .in derogation of the' common law is, by our practice, restrained to the question of jurisdiction. A special and limited jurisdiction is in so many cases committed to subordinate magistrates) who are either ignorant, ,or^ regardless of forms, that an application of the rule in the extent in which it is usually predicated, would be intolerably mischievous. “ The settled rule'of this court,” says Judge Yeates, “has been, on removal of proceedings of justices of the peace in cases where their jurisdiction evidently appears on the record, to form no presumption against the accuracy of such proceedings.” (Buckmyer v. Dubs, 5 Binn. 32.) Now, as it is expressly found .that Henry Cassel was the defendant whose land was sold; that he'was in possession at the time; and. that the purchaser gave notice to him, and to George Reinhart and Mraham Cassel, his tenants, it would require considerable astutia to discover that the tenants were not in possession under him. So, in respect of. the remaining exceptions: The inquest having found that the purchaser gave due and legal notice, nothing less than a presumption unfavourable, to the accuracy of the proceedings, would enable us to say. that all the requisitions of the law have not been fulfilled. ■ It is true, that in attempting to set out the manner and form of the notice, it is-not expressly found to haye been given three months previous to the application to the justices; but neither is the converse found; and as the inquest could nothave found the notice to be due and legal, if not given in due time,th.e inquisition, although not so formal in this respect as an indictment, is well enough. The objection to-the plaint is not founded'.in fact; and the other exceptions which were urged below, are without the semblance of substance. ' It is said, that, re-restitution being of grace, no reason has -been shown why we should award it here. ‘ But without it, there would be small compensation, in reversing the judgment. As the purchaser wa's deprived of the just fruits of, his. execution, we are bound not only to correct the error, but to redress the injury which was thé consequence of it; and there is a peculiar fitness in this, where the proceeding is festinum remedium, the -object of which would otherwise be frustrated. Tod, J. dissented on the point of notice. Judgment reversed; the proceedings of the justices affirmed, and re-restitution awarded.