Reynolds v. Orvis — 7 Cow. 269

Majority

p. 268

*Reynolds against Orvis, impleaded with Herrick.

NEW YORK,

May, 1827.

Headnote

Semble, that th6w”xamination of a paugtltu™5” 221> ,®- 7>) ed to any con-°where the pauper re-cannot be exeother town *here the pau-

tices issued ™nt directed and delivered by them to a constable, of another town, who arrested and brought the pauper before one of them and another justice; and these two justices examined the pauper, and made an order of removal, which was executed; held', that the proceedings .were coram non judice and void; though no objection was made by the pauper to the informality.

Sed, that false imprisonment would lie, in such case, against the justices who issued the process, and delivered it to the constable. Otherwise, ha.d the pauper appeared voluntarily, and submitted to an examination.

Where a statute requires that a certain person-shall execute process, and it is executed by another, such a- proceeding is void. It gives no jurisdiction; and all the subsequent proceedings upon it are coram non judice, and void.

Trespass and false imprisonment; tried at the Jefferson circuit, June, 25th, 1825, before Williams, 0. Judge.

At the trial, the following facts were in evidence: The plaintiff was a resident of the town of Le Ray, in Jefferson county, having been assessed and paid taxes there' in 1817 and 1821. In June, 1823, Or vis the defendant, and Hamlin, being justices of that county, issued a warrant dh’ected to any constable of the county of Jefferson, commanding him to bring the plaintiff before them to be examined as a pauper. This warrant was delivered by them to a constable of the town of Philadelphia, in the same county, who apprehended and brought the plaintiff before the defendants, Orvis and Herrick, the latter also a oi that county. He was examined by them touching his last place of legal settlement. They made an order to re

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move him and his two sons from Le Eay to Greenfield, in _ n Saratoga county; and they were removed accordingly from. constable to constable, &c.

The plaintiff offered to prove, that on his examination, he stated, under oath, that he had paid taxes two years, • but not in succession, in Le Eay; and offered other proof of the same facts, which the justices refused to hear, and decided that he was not settled in Le Eay ; and could not legally be settled there without owning real estate.

The judge overruled the evidence, and nonsuited the plaintiff; and a motion was now made to set aside the non-suit, and a new trial, on a bill of exceptions containing the above facts.

C. E. Clarke, for the plaintiff.

The warrant was not only misdirected, but delivered to the wrong officer, and *executed by Orvis’ express direction. They could not, in this way, gain jurisdiction of the plaintiff’s person. The warrant should, by the statute, have been directed to, and executed by a constable of the town concerned. (1 R. L. 281, s. 7.) The justices are limited to this course, in express terms.

The same justices who issued the warrant should have taken the examination. It was returnable before them. The warrant, arrest and examination being thus palpably irregular, any proceedings founded upon them were coram non judice, and void. There is no provision in the statute for making the warrant returnable before magistrates other than those who issue it.

There is no doubt this plaintiff has been most illegally and vexatiously removed from his plain legal settlement. Magistrates are bound to take notice at their peril, that the pauper is an inhabitant of the town where he becomes chargeable. If he be so, they have no jurisdiction. There was no need of the plaintiff’s paying taxes two years in succession to constitute a settlement. ( 20 John. 282 .)

To warrant the justices in proceeding, they must have jurisdiction of the person and process, as well as the sub

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ject matter. They derive their jurisdiction from the statute ; and if they have not followed it, they are trespassers.

B. F. Butler, contra.

The question is, whether the justices had jurisdiction. What was necessary to this ? It is said the fact of wanting a legal settlement in Le Eay. This we deny. They might act on the information of any set of overseers in the county; or even on their own suspicion. Either will give them jurisdiction; on which they may issue their warrant. Ho sort of proof is necessary. The pauper being brought before them, or voluntarily appearing, gives complete jurisdiction. Eeynolds was properly before the defendants. True, the statute cited requires that the warrant shall go to a constable of the town; and this would doubtless have been more formal; but does such a slight irregularity make the justices trespassers ? The complaint against the pauper may be *made to the justices of any town in the county. Their territorial jurisdiction is co-extensive with the county. If the direction had been to an officer of another county, I agree there would have been a want of jurisdiction to arrest. The constable, too, in this case, had power to execute the process in every part of county.

It is objected, that a justice was called to sit before whom the process was not returnable. True, there is no express provision in the statute warranting this; nor do we think it necessary there should be. Even if Eeynolds had come before the justices without any warrant at all, their authority would have been complete. It does not appear that he made any objection to the mode of being brought before them. It is the same case as if he had voluntarily appeared. He should have objected to the informality; and not having done so, he waived it. ( 8 John. 44 to 51.) When the justices made the adjudication of settlement and order of removal, they acted judicially; and the record of their proceedings is conclusive

Clarke, in reply,

said there was nothing in the statute which authorized an examination without process issued

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and executed. This must be in a '.particular form: or there . , „ . r ’ a want oí jurisdiction.

If this action can be sustained, it must be on the ground that the justices had no jurisdiction of the process, and of the person of the plaintiff. It appears to me the sole question is, whether the arrest and detention, under the process issued to bring the plaintiff before the justices for examination, was not a false imprisonment. After the plaintiff was before them, if he voluntarily submitted to an examination, and the justices erred in the subsequent proceedings, yet, as they then had jurisdiction of the person and subject matter, those proceedings were not void, but voidable; liable to be reversed for error ; but not coram non judies, so as to lay the foundation for an action of trespass.

The 7th section of the statute (1 R. L. 280, 281,) directs that the warrant -shall be issued to the constable of the *town likely to become chargeable. In this case the warrant was directed to any constable of the county. The direction was more extensive than the statute ; but it necessarily included the constables of the town of Le Bay; omne majus in se coniinei minus. I rather consider this as surplusage, that might be rejected, had a constable of Le Bay served the process! I think -it would be a substantial compliance with the act. The statute is explicit that the constable of the town shall be commanded to bring the stranger before the justices, and the justices are authorized to examine every stranger so brought before them-; .and -if, upon such examination, they shall find him likely to become -a charge, they may remove. The right to bring-a person for examination is given; -the manner that right is to be exercised is prescribed. When a rule is laid down for the government of inferior jurisdictions, we .are not at liberty to inquire whether it can be safely departed from.;, whether the mode pursued is equally beneficial to the party, as that pointed out by the statute. The answer to arguments of this kind, is, that the law has prescribed the manner in which the person of the pauper may be appre

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hended. If the appearance of the pauper is not voluntary, jurisdiction of Ms person cannot be acquired, unless the course prescribed is pursued. Here there was no assent, no waiver of the right to question the legality of Ms caption and detention. He was brought before the justices by compulsion; illegally held as a prisoner, and examined. Ho question was raised at the time respecting the arrest, or whether he waived any previous irregularity. If it had appeared in the bill of exceptions, that the plaintiff consented to be examined, such consent would only go to warrant the subsequent proceeedings. It would leave the question untouched, whether the justices had illegally caused him to be arrested. He cannot be precluded from his action for his illegal imprisonment, unless he voluntarily submitted to it; and waived the irregularity in the process.

In this ease, the warrant was delivered to a constable of a different town, not authorized by the statute to serve it. *He arrested the plaintiff by order from the justices, and consequently, if there was no authority, they are trespassers. This part of the case does not implicate Herrick, one of the defendants. He was not one of the justices who issued the warrant. His liability will depend on the regularity of the subsequent proceedings. "Without deciding whether it was or was not competent for the defendants to take the examination and make the order of removal, Herrick not being one of the justices who issued the warrant, it may be observed, that if the opinion expressed as to the apprehension and imprisonment of the plaintiff be correct, it follows that the subsequent proceedings cannot be supported. I admit that, had it appeared that the plaintiff voluntarily consented to be examined, it would not, as to the subsequent proceedings, be material to inquire in what manner the plaintiff came or was brought before the justices. But consent cannot be inferred, when it appears, that, at the time of examination, the plaintiff was held as a prisoner under an unlawful arrest. His acts are referrable rather to constraint than otherwise. The subsequent proceedings, then, can only be supported by showing that the previous

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steps were upon authority of law. The statute confers the r , . Power to removej “j upon such examination, the justices shall find the pauper is likely to become a charge; that is, upon an examination, had in consequence of the apprehension and bringing the pauper before them, in the manner directed by the act. The statute confers no power to remove upon an examination of the pauper, when it appears that he has been wrongfully imprisoned, and illegally brought before the justices. It is only upon an examination when the pauper is rightfully brought before, them. The statute, when speaking in the 7th section, if upon such examination, intends that it shall be had, and predicated on the proceedings previously prescribed. If there has been a failure in this respect, (and there is no evidence of a voluntary appearance and consent to be examined, which I have no doubt would be within a just construction of the statute,) it seems to follow, that the order of removal and the proceedings *under it, are void. The doctrine advanced is supported by the case of Bigelow v. Stearns, ( 19 John. 3 .) It is there laid down, that if a court of limited jurisdiction issues process which is illegal; or if a court, whether its jurisdiction be limited or not, holds cognizance of a cause without having gained jurisdiction of the person of the defendant, by having him before them in the manner required by law, the proceedings are void.^[1]

In that case chief justice Spencer observed, “I consider it perfectly well settled, that to justify an inferior magistrate in committing a person, he must have jurisdiction, not only of the subject matter of the complaint, but also of the process and the person of the defendant.”

On these grounds, I am of opinion that the plaintiff is

[1] [1] Justices’ courts can take nothing by implication; but are strictly confined to the authority given them by statute. 1 J. Cas. 20. 1 Cal 191 . The rule is well settled, that if a justices’ court acts in a matter of which the statute has given it no jurisdiction, its proceedings are absolutely void. 17 J. R. 145. 3 Cow. 309 . 11 J. R. 175. Nor can the parties confer jurisdiction by their own acts. Thus, if a justices’ court try an action for slander, libel, or assault and battery, the proceedings are void, though the parties appear and consent to go to trial. 3 Cow. 206 ; 1 Wend. 210 ; 8 J. R. 409; 14 J. R. 432.

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entitled to recover, a new trial granted, The nonsuit must be set aside: and . . , . . - , ' with costs to abide the event.

New trial granted.