Butler v. Potter — 17 Johns. 145

Majority

p. 123

*Butler against Potter.

Headnote

Where a justice liaS n<' inricdie. > no jurisdiction whatever, and undertakes arclnram Ju,Hce hnsjúrisdicüonj ami errs ⅛ tfe JS^'acts0* are voidable only, ⅛«" peace, ⅛ a ⅛⅛£° and of which he had legal cognizance, gave judgment for the plaintiff', for more than jive dollars costs, besides dama ges,contrary⅛ ⅛ «-bole amount of cmts ,t0 be recovered, to tfe sum of /me action of tres-dollars, the judgment and execution thereon were held to be voidable only 3 and that, therefore, the justice was not pass, cv-c., and false imprisonment, at the suit of the defendant, who had been imprisoned under the «-tt cut ion issued on the judgment.

IX CRUOR, to the Court of Common Pleas of Onondaga county.

The plaintiff below brought an action of trespass assault and buttery, and false imprisonment, against the defendant below, who pleaded the general issue, with notice of justifica-lion, to wit. that the plaintiff and one Tappin, on the 26th of June. 1817. confessed a judgment before the defendant, as a justice of the peace, under the act for the recovery of debts to the value of -25 dollars, upon which judgment execution was issued in favor of the plaintiff in that suit; and by virtue of which execution, the constable to whom it was directed, committed the plaintiff to gaol, which was the same trespass, assault, &c., mentioned in the plaintiff’s declaration, &,c

On the trial of the cause in the court below, the execution issued Ity the defendant, as justice of the peace, against the plaintiff’ and Tappin, was produced in evidence, from which it appeared that the judgment was rendered for sixteen dollars damages, mid five dollars and eighteen cents costs; and the plaintiff proved that he was committed to gaol on the execution.

The counsel for the plaintiff’ below then objected, that inasmuch as it appeared, by the judgment and execution, that ,, , - . J , 7- ., , the costs were more than five dollars, it was contrary to the provision of the 26th section of the |p dollar act; and the execution was, therefore, void, and no justification to the defendant. The court below decided that the execution was void, and directed the jury to find a verdict for the plaintiff; and the jury, accordingly, found a verdict for Potter, the plaintiff below, against Butler, for 25 dollars and 50 cents damages ;

p. 124

and the defendant below tendered a bill of exceptions to the opinion of the court, on which the writ of error was brought.

The cause, on the return to the writ of error, was submitted to the court without argument.

The justice had jurisdiction to give judgment for costs ; and though he was limited as to the amount, and gave judgment for more than he ought, it was an erroneous, not a void judgment. The case of Prigg v. Adams, (2 Salk. 674.) is in point. There, an action of trespass and false imprisonment was brought, and the defendant justified under a ca. sa., on a judgment in the Common Pleas, for five shillings, on a cause of action arising in Bristol. The plaintiff replied, setting out an act of parliament for erecting a court of conscience in Bristol, enacting, that if any person bring such action in any of the courts at Westminster, and it appeared, on trial, to be under forty shillings, that no judgment should be entered for the plaintiff"; and if it be entered, then, that it should be void. The court held the judgment voidable only, by plea or writ of error. We have decided, that where a justice has jurisdiction to issue an attachment, but proceeds erroneously in doing so, he is not, therefore, a trespasser. The distinction is this: where the justice has no jurisdiction whatever, and undertakes to act, his acts are coram nonjudice; but if he has jurisdiction, and errs in exercising it, then the act is not void, but voidable only.

Judgment reversed.