Straughan v. Inge

Davison, J. On the 5th of October, 1848, Samuel Inge filed his affidavit before a justice of the peace, and thereupon sued out a writ of ne ■exeat against Straughan, The affidavit charges that Straughan was indebted to the complainant 53 dollars, by note due the 25th of December, 1848, and that he had good reason to believe, and did verily believe, that Straughan was about to remove from this state, tailing with him property subject to execution, or monies or effects with which the debt should be, in whole or in part, satisfied or secured, with intent to defraud the complainant. No bond appears to have been filed before the justice prior to the issuing of the writ. Strcmghan was arrested, and after the return of the writ, “moved to be released.” The justice overruled the motion, proceeded to try the cause, and gave judgment for Inge. Straughan appealed. In the Circuit Court he moved to quash the writ. This motion was overruled. The Court tried the cause, found for Inge, and ordered Straughcm to give bond, &c. In these proceedings there is a fatal defect. It is not shown by the record that a bond was filed before the writ issued. By an act in force when this suit was commenced, it was provided that, “ No writ of ne exeat shall be issued” by a justice of the peace, “ until the complainant applying for such writ shall have filed his bond, with security to the acceptance of the justice, for the payment of the costs that may accrue on such writ, and the damages the defendant may be entitled to in case the plaintiff may have procured [158] the issuing of said writ without cause.” Acts of 1847, p. 82, sec. 11. The statute is imperative. Until a bond was filed, the justice had no authority to issue the writ. J. M. Hanna, for the appellant. W. A. McKenzie, for the appellee. No presumption is made in favor of an inferior tribunal. Jurisdiction must appear upon the face of its’ proceedings. 19 Johns. R. 39.—1 Blackf. 85.—5 Blackf. 273. The judgment must be reversed. Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.