Case v. Shepherd — 2 Johns. Cas. 27

Majority

p. 26

Case against Shepherd.

Headnote

Where a justice, after a certiorari from this court was delivered to him, proceeded to try the issue of traverse on an indictment under the act to prevent forcible entries and detainers, and the defendant being found guilty, the writ of restitution was issued, and the defendant turned out of possessiou, it was held, that the proceedings of the justice, after the certiorari, were coram non judice, and void, and that the justice was liable to an action of trespass.

Where an entry is followed by an ouster, the party oan recover damages only for the mere trespass or entry ; but if he make a re-entry and lays his action with a continuando, he may then recover damages for the mesne profits or subsequent acts, as well as for the trespass.

This was an action of trespass quare clausum fregit, for treading down the plaintiff’s grass, and cutting and carrying away wheat, rye, oats, &c. from his close, &c. Plea not guilty, The cause was tried, at the Rensselaer Circuit, before Mr. Justice Benson,

The defendant was a justice of the peace; and in July, 1797, the plaintiff was indicted before him under the act to prevent forcible entries and detainers. The plaintiff pleaded

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to the indictment, hut before trial of tho traverse, he obtained a certiorari from this court to remove all the proceedings, which he delivered to the defendant, who, notwithstanding, proceeded to try the issue, on which the present plaintiff was found guilty. The defendant, thereupon, issued a warrant of restitution, in the usual form, to the sheriff of the county, by virtue of which the plaintiff was turned out, and one Bull put into possession of the premises.

The plaintiff offered to prove that, at the time Bull was put into possession, there were crops of wheat and rye, *growing on the premises, which were reaped by him and converted to his own use. The defendant objected to this testimony, but the objection was overruled by the judge, and the evidence admitted. The plaintiff proved that Bull reaped about 200 bushels of rye, and 400 bushels of wheat, and the jury, thereupon, found a verdict for the plaintiff for 265 dollars, damages.

A motion was made to set aside the verdict, and for a new trial.

Emott, for the plaintiff

Woodworth, for the defendant.

There can be no doubt that the delivery of the certiorari to the justice, superseded his powers, and rendered all subsequent proceedings before him coram non judice, and void.(^[3] ) (Cro. Oar. 261; 1 Salk. 352.) The act

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requiring bail in certain cases, (11 sess. c. 2, s. 4,) upon certioraris, does not apply to the case of an indictment before a justice, under the statute of forcible entry and detainer; for it is not a judgment or order within the meaning of the act.

As the magistrate holds a court of a special and limited jurisdiction, and proceeded after his power was taken away by the certiorari, he became a trespasser, and is liable as such.(^[2] ) (Comy. Rep. 81. 2 Black. Rep. 1145 , 1035. 1 Burr. 596, 602. 8 Co. 114, 121. Str. 710, 993. Cowp. 640, 647. ■ 1 Lord Raym. 454, 468, 470.)

The only question, therefore, is as to the extent of the damages to be recovered, or whether the defendant is to be made responsible for the consequential damages of the ouster.

In this case the tfespass is laid with a continuando; hut the distinction, as to the amount of damages to be recovered in this action, is this; after an ouster, you can only recover for the simple trespass or the first entry: for, though *where there is an ouster, every subsequent act is a continuance of the trespass, yet in order to entitle the plaintiff to recover damages, for the subsequent acts, there must be a re-entry. But after a re-entry he may lay his action with a continuando, and recover mesne profits, as well as damages, for the ouster. (1 Lord Raym., 692. 2 Salk. 639. 2 Lord Raym. 975, 977. 1 Leon. 302, 319. 13 Co. 600. Menville’ case. 3 Black. Com. 210. Co. Litt. 275.) The present suit was commenced before any re-entry by the plaintiff; he is, therefore, entitled to recover damages for the first entry only, or single trespass, and not for the crops.(^[3] ) There must be a new trial, with costs to abide the event of the suit.

" New trial granted.

b b (b) Where a court has jurisdiction of the cause, Le case del Marshalsea, 10 Co. 76, a., and proceeds inverso ordine, or erroneously, an action does not lie against the court, the party who sues, or the officer or minister of the court, who executes the precept or process. Easton v. Calendar, 11 Wend. 91 . Hurst v. Wickwire, 10 id. 102 . Horton v. Auchmoody, 7 id. 200 . Curry v. Pringle, 11 Johns. R. 444. Smith v. Shaw, 12 id. 257. Yates v. Lansing, 5 id. 282 ; 9 id. 395. Reynolds v. Cock, 3 Caines’ R. 267. Moor v. Ames, id. 170. Reynolds v. Church, id. 274. Reynolds v. Orvis, 7 Cowen, 269. Cunningham v. Bucklin, 8 id. 178. Van Sternbergh v. Kortz, cited infra. Bigelow v. Stearns, 19 Johns. R. 3. Caleb v. Cooper, 15 id. 152. Butler v. Potter, 17 id. 145. Vosburg v. Welch, 11 id. 175, 177. Steph. N. P., Sharswood’s ed. 2019. Brodie v. Rutledge, 2 Bay, 69 . Ambler v. Church, 1 Root, 211 . Phelps v. Sill, 1 Day, 315 . Young v. Herbert, 2 N. & M’Cord, 368. Reed v. Hood, id. 168. Ely v. Thompson, 3 Marsh. R. 76. Little v. Moore, 1 South. 74 . See Tracy v. Williams, 2 Conn. R. 113. Evans v. Foster, 1 N. Hamp. R. 374. See also 2 Bay, 1 . Harper, 66. Ross v. Rittenhouse, 2 Dallas, 160. 1 Yeates, 443 . But if the court have not jurisdiction of the cause, the whole proceeding being coram non judice, an action will lie against them. Nicols v. Walker, Cro. Car. 395. Hill v. Bateman, Str. 711. Shergold v. Holloway, id. 1102. Perkin v. Proctor, 2 Wils. 384. Brown v. Compton, 8 T. R. 424. Wickes v. Caulk, 5 Har. & J. 42. Griffith v. Frazier, 8 Cranch, 9 . Den v. Harnden, Paine, 55. Hence where one of the bail had been arrested by process out of the Marshalsea, (Le case del Marshalsea, cited supra,) for the purpose of satisfying a judgment obtained against'a principal, in a cause of which the Marshalsea court had no jurisdiction, it was holden that an action for false imprisonment would lie against the party who sued, the marshal who directed the execution of the process, and the officer who executed the same. If, therefore, a magistrate commit a party where he has no jurisdiction, he is liable to an action of trespass. Case v. Mountain, 1 M. & G. 227. Public policy demands that courts of inferior jurisdiction should be strictly estr ained within the limits of their jurisdiction, and the law accords with this principle. It mus‘t, therefore, appear on the face of their proceedings that they acted within their limits, or such proceedings are coram non judice and void. The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court, but that which is so expressly alleged. Peacock v. Bell, 1 Saund. 73. Per Cowen, J. in Hart v. Seixas, 21 Wend. 40 , 46, et seq. Per Bronson, J. in Bloom v. Burdick, 1 Hill, 130 ,139. Foot v. Stevens, 17 Wend. 483 . Kemp v. Kennedy, 5 Cranch,172. Pet. C.C.R. 36. Albee v. Ward, 8 Mass. R. 86 . Walbridge v. Hall, 3 Verm. R. 114. Smith v. Rice, 11 Mass. R. 513 . Williams v. Blunt, 2 Mass. R. 213 . Turner v. Bank of America, 4 Dallas, 11. Hunt v. Hapgood, 4 Mass. R. 122 . Clapp v. Beardsley, 1 Aik. 168 . Martin v. McKinney, Pr. Dec. 380. Hall v. Howd, 10 Conn. R. 514. Hendrick v. Cleaveland, 2 Verm. R. 329. Powers v. People, 4 Johns. R. 292. Hamilton v. Burum, 3 Yerg. 355 . Latham v. Edgerton, 9 Cowen, 227. Stockett v. Nicholson, Walker, 75. Wooster v. Parsons, Kirby, 27. Wickes v. Caulk, 5 Har. & J. 36. McKenzie v. Ramsey, 1 Bailey, 459. Harvey v. Huggins, 2 Bailey, 267. See 2 Overt. 215 . Den v. Turner, 9 Wheat. 541 . Hill v. Pride, 4 Call, 107 . In the case of Miller v. Seare et al. 2 Wm. Black. 1141, 1145, De Grey, Ch. J. observes : — “ In courts of special and limited jurisdiction, having power to hear and determine, a distinction must be made. While acting within the line of their authority, they are protected as to errors in judgment; otherwise they are not protected. So in Dr. Bonham’s case, false imprisonment lay, because they had exceeded their authority. In Dr. Groenvelt’s it did not lie, because they were within their jurisdiction. In Dr. Bouchier’s case, and the case of Terry and Huntingdon in Hardres, [p. 480 ; cited 12 Mod. 392,] it lay because of the excess of jurisdiction. Thus much of courts. The case is stronger, when applied to single magistrates, having or not having jurisdiction. [See this subject fully discussed in Perkin v. Proctor, 2 Wils. 384. [See also Brittain v. Kinnaird, 1 Brod. & B. 432 ; 4 B. Mo. 50, and cases there referred to. Milward v. Caffin, 2 Wm. Bl. 1330.] In all the cases where protection is given to the judge giving an erroneous judgment, he must be acting as judge. The protection, in regard to the superior eourts, is absolute and universal; with respect to the inferior, it is only while they act within their jurisdiction.” See Dr. Bouchier’s case, considered by Spencer, J. in Van Sternhergh v. Kortz, 10 Johns. R. 167, 170. Where, therefore, no jurisdiction to do a particular act is shown by an inferior tribunal, the officer doing it is subject to an action, if it result in an injury to the property or the person of any one. Adkins v. Brewer, 3 Cowen, 206. If void process be issued, even though no malice enter into the act, trespass will lie, not only against the plaintiff, but also against the magistrate. Id. Per Jackson, J. in Hayden v. Shed, 11 Mass. R. 500 . Smith v. Rice, id. 507 , Sedgewick, J.in Albee v. Ward, 8 id. 79. Van Sternbergh v. Kortz, ut supra. Kennedy v. Terrill, Hardin, 490. See Prince v. Thomas, II Conn. R. 472. As where a justice (in Massachusetts) issued an execution, within two or three hours after judgment was entered up, though by the statutes of 1783, c. 58, § 1, and 1784, c. 28, § 15, it was provided that the execution should not issue in any case until after the expiration of twenty-four hours after the entering up of judgment, Briggs v. Wardwell, 10 Mass. R. 356 ; or a warrant against the plaintiff as the father of a bastard child, though no complaint had been made to authorize it, Poulk v. Slocum, 3 Blackf. 421 ; or an execution for costs under which the plaintiff’s horse was sold, without jurisdiction. Rembert v Kelly, Harper, 65. See the judgment of Marcy, J. in Savacool v. Boughton, 5 Wend. 170 . Also Borden v. Pitch, 15 Johns. R. 121. Prigg v. Adams, 2 Salk. 674. Griffin v. Mitchell, 2 Cowen, 548. And the judgment of Nelson, J. in Easton v. Callendar, 11 Wend. 90 .

a a (a) Both possession and right of possession, (which right may exist as against the defendant without the legal title. Birkley v. Presgrave, 1 East, 224. Chambers v. Donaldson, 11 id. 65, 67. Catteris v. Cowper, 4 Taunt. 547 ; et vide Hughes v. Gilman, 2 C. & P. 33. Per Best, Ch. J. in Revett v. Brown, 5 Bing. 9, and Holmes v. Newlands, 11 Ad. & Ell. 44. Graham v. Peat, 1 East, 244. Duncan v. Potts, 5 Stew. & Port. 82. Townsend v. Kerns, 2 Watts, 180 ,) must concur to enable one to maintain trespass yuare *29 clausum fregit. The gist of this action is an injury to the possession. Bac, Abr. tit. Trespass, C. Bertie v. Beaumont, 16 East, 33. Rex v. Watson, 5 id. 485, 487. Alexander v. Bonnin, 4 Bing. N. C. 799. U. S. Digest, by Metcalf, Perkins and Curtis, tit. Trespass, and authorities: Austin v. Saywer, 9 Cowen, 39. Brandon v. Grimke, 1 N. & M. 356. Addleman v. Way, 4 Yeates, 218 . Chatham, v. Brainerd, 11 Conn. R. 60. Torrence v. Irwin, 2 Yeates, 210 . Wheeler v. Hotchkiss, 10 Conn. R. 225. Skinner v. McDowell, 2 N. &M. 68. Truss v. Old, 6 Rand. 556 . Cooke v. Thornton, id. 8. Shenk v. Mundorf, 2 Brown, 106. Bigelow v. Lehr, 4 Watts, 377 . Campbell v. Arnold, 1 Johns. R. 511. Kempton v. Cook, 4 Pick. 305 . Wickham v. Freeman, 12 Johns. R. 183. Stuyvesant v. Tompkins, 9 id. 61. Walton v. Clarke, 4 Bibb, 218 . Peareson v. Dansby, 2 Hill (S. Car.) 466. Beggs v. Thompson, 2 Hamm. R. 95. Norwood v. Shipley, 1 Har. & J. 295. Tomlinson v. Riser, 2 id. 444. Rhodes v. Bunch, 3 M’Cord, 66. Taylor v. Townsend, 8 Mass. R. 411 . Shepard v. Pratt, 15 Pick. 32 . Owings v. Gibson, 2 A. K. Marsh. 515 . As to constructive possession, see Davis v. Clancy, 3 M’Cord, 422. Bulkley v. Dolbeare, 7 Conn. R. 233. Gillespie v. Dew, 1 Stewart, 229 . Aikin v. Birch, 1 Wend. 466 . Goodrich v. Hathaway, 1 Verm. R. 485. But see Poole v. Mitchell, 1 Hill (S. Car.) R. 404. Trespass will lie for the original ouster without a re-entry, Taylor v. Townsend, cited infra; but as possession is an essential requisite to this action, one who is disseised can maintain trespass for no act subsequent to that which ousted him from the premises, but after re-entry he may sue for all the intermediate acts of trespass. 3 Com. Dig. tit. Trespass, B. C. Per Parker, J. in Taylor v. Townsend, 8 Mass. R. 411 , 415. See also per Parker, arg. in Proprietors of Kennebeck v. Call, 1 Mass. R. 483 , 486. As to the continuando In trespass, add to the authorities cited by the court, 2 Roll. Ab 545, pi. 1; and see generally upon this subject, 2 Chit. Pl. 5th Am. ed. 846, n. (s.) 2 Saund. PI. and Ev. 855.

Footnotes

a a (a) It is clearly settted, that when a certiorari is received by the court below, it operates as a supersedeas, and all subsequent proceedings on the record are erroneous. Bac. Abr. tit. Certiorari, G. Com. Dig. Certiorari, E. Cross v. Smith, 12 Mod. 643. Reg. v. Nash, 2 Ld. Raym. 989. See the opinion of Savage, Ch. J. in Patchin v. Mayor, &c. of Brooklyn, 13 Wend. 664 , 665, 666. Payfer v. Bissell, 3 Hill, 239 . Gardner v. Murray, 4 Yeates, 560 . Kingsland v. Gould, 1 Halst. 161. Mairs v. Sparks, 2 Southard, 513. Though where an execution is iu process of being executed, it is not superseded by the allowance and delivery of the certiorari. Regina v. Nash, cited supra. Meriton v. Stevens, Will. 271. Blanchard v. Myers, 9 Johns. R. 66 Payfer v. Bissell, cited supra. See also Wilson v. Williams, 18 Wend. 581 ; also 1 Cowen, 2l. It has been held, however, in Pennsylvania, that a certiorari to remove the proceedings of justices under the landlord and tenant law of that state, is not a supersedeas to an execution, Anon,, 4 Dallas, 214, Stewart v. Martin, 1 Yeates, 49 .