Beckwith v. Houghton

Redfield, J., who was to have delivered the opinion of the court, in this case, having been unexpectedly called away, before judgment was pronounced, afterwards drew up the following opinion. . The court have no doubt, that giving a note for a pre-existing account, under the circumstances detailed in the bill of exceptions, is so far a new contract, that, when put in suit, the mode of process and the privilege of the defendant must be determined with reference to the contract, as of that date. The suit is upon the note, and the note bears date subsequent to the first day of January, 1831. It was then a contract “ made and entered into,” subsequent to that day. By the very terms of the statute the defendant was entitled to the benefit of the poor debtor’s oath. But we do not affirm the judgment of the county court, as the error complained of was not in their judgment; but in a subsequent proceeding affecting the form of the execution merely. Since the time of Lord Holt, Groenvelt v. Burwell, 1 Salk. R. 263, it has been considered, that error will not lie to correct the proceedings of a court of record, in summary matters, where the jurisdiction in not exercised “ according to the course of the common law but in a new course different from the common law.” 2 Saunders’ R. 101, and notes. Here the proceeding complained of was not within the ordinary jurisdiction of courts of record, but a special and summary jurisdiction, to be exercised “ different from the course of the common law.” For any error committed by the court in such summary proceedings, the party aggrieved must take his redress, by certiorari or mandamus or other mode, as he may be advised. The exceptions are dismissed.