Majority
p. 194Noble and Eastman vs. Holmes.
Headnote
As a general rule, process regular upon its face is sufficient to protect a ministerial officer acting under it, although it may have been issued without authority. Per Bronson, J.But where the officer, in order to justify a seizure of goods under a justice’s attachment, is obliged to attack a sale by the debtor as being fraudulent in respect to creditors, he must produce and prove not only the attachment, but the preliminary proceedings authorizing the issuing of it
If the seizure be made upon an execution, the officer will be under the necessity of proving the judgment on which it issued.
Replevin for a yoke of oxen, tried before Monell, C. Judge, at the Chemung circuit, in June, 1842. The defendant is a constable, and took the property out of the possession of the plaintiffs by virtue of an attachment issued by a justice of the peace against one Everitt Lattin in favor of M. & H. Phillips. The plaintiffs claimed title to the property under a purchase from Lattin prior to the issuing of the attachment; and immediately after the defendant had taken the property by virtue of the attachment, the plaintiffs retook it by virtue of the writ of replevin. A question was made whether the plaintiffs’ purchase was not fraudulent as to Lattin’s creditors. The plaintiffs insisted that the defendant must show the necessary proceedings to give the justice jurisdiction to issue the attachment. The judge overruled the objection, and decided that the process, being "regular on its face, was. a protection to the defendant. Under the charge of the judge the jury found a verdict for the defendant, and the plaintiffs now moved for a new trial on a case.
(S. Hazen, for the plaintiffs.
E. Quin, for the defendant.
Under the ruling of the judge the jury may have found a verdict for the defendant, although they believed that the plaintiffs had a good title to the oxen as
p. 195
against Lattin. If they believed that fact, the defendant had no right to take the property from the plaintiffs by virtue of the attachment against Lattin, without showing that the sale to the plaintiffs was void as against creditors. The sale could not be impeached by a creditor at large. It must be a creditor having a judgment and execution, or some other process which authorized a seizure of the goods. As a general rule, process regular upon its face is sufficient for the protection of the officer, although it may have been issued without authority.[1] But when the officer attempts to overthrow a sale by the debtor on the ground of fraud, he must go back of his process, and show authority for issuing it. If he act under an execution, he must show a judgment; and if he seizes under an attachment, he must show the attachment regularly, issued. If Lattin had sued, it would be enough for the defendant to produce the attachment ; but it is otherwise as against the plaintiffs who are strangers to the attachment, and claim under an older, and therefore better title, unless it can be impeached for fraud.
New trial granted.[2]
(a) (a) As to this rule and some of its qualifications, see Cowen & Hill’s Notes to Phill. Ev. pp. 990, 1005, et seq. and 1078; Horton v. Hendershot, ( 1 Hill, 118 , 120, note (b);) Jermaine v. Waggener, (id. 279, 285.)
(b) (b) See Damon v. Bryant, ( 2 Pick. 411 ;) Parker v. Walrod, ( 16 Wend. 514 ;) Jansen v. Acker, (23 id. 480;) see also Cowen & Hill’s Notes to Phill. Ev. 1011, 1082, 3; 1 Phill. Ev. 390, 1, 7th Lond. ed.