John Voorhees, Jeremiah Letton, Schoney Achley and Nicholas Longworth, Plaintiffs In Error v. James Jackson, Ex Dem the President, Directors and Company of the Bank of the United States

Decision Date01 January 1836
CourtU.S. Supreme Court

IN error to the circuit court of the United States, for the district of Ohio.

The President and Directors of the Bank of the United States instituted an action of ejectment in 1831, for the recovery of a tract of land in the county of Hamilton, in the state of Ohio. On the trial of the case, in order to establish their title, they gave in evidence to the jury the proceedings in an attachment against Seth Cutter, in the county court of Hamilton county, commenced in 1807; under which the tract of land in the ejectment was sold, in 1808, and the sale returned by the auditors appointed by the court to make the same, on the 16th day of April 1808. The sale was confirmed by the court, at August term 1808; and, according to the provisions of the attachment law of the state of Ohio, the auditors had previously made a deed to William Woodward and William Foster, the purchasers of the property sold.

This deed was executed on the 28th day of May 1828, to Woodward & Foster, who on the same day conveyed the same to William Stanley.

The defendants in the ejectment claimed title to the premises, which were in their possession, under Seth Cutter. They insisted that the proceedings in attachment did not divest Seth Cutter of his title to the land: but the court instructed the jury otherwise. The jury gave a verdict in favour of the plaintiffs. To the judgment of the circuit court, on the verdict, the defendants below prosecuted this writ of error.

The record of the county of Hamilton county, in the attachment against Seth Cutter, and the opinion of the circuit court upon the title derived under it, by the plaintiffs below, were brought up by a bill of exceptions. The whole proceedings in the attachment are stated fully in the opinion of the court.

The case was presented to this court, on printed arguments, by Mr Caswell, and Mr Chester, for the plaintiffs in error; and by Mr Fox, and Mr Chase, for the defendants. Mr Sergeant also delivered to the court a written argument, for the defendants in error.

The printed argument of the counsel for the plaintiff in error, presented for the consideration of the court, was as follows:

1. Were the proceedings in attachment sufficient to divest the title of Seth Cutter to the premises in dispute?

2. Was that title by such proceedings, and by the deed made, vested in Samuel Foster and William Woodward?

The plaintiffs in error hold the negative on both these points.

The powers of courts are of two kinds, ordinary and extraordinary. The first are those general powers of adjudicating between parties, the defendant being within reach of their process, upon matters within the general cognizance of the tribunals, as established by law. The constitution or laws establishing the respective courts of the union or the states, define, by marked boundaries, these general powers, as distributed to the different courts, and fix the limits of their respective jurisdictions. Within these boundaries their power is exercised according to their own discretion and judgment of the law, and their adjudications are conclusive upon the rights of the parties, unless the case be regularly brought under the review of an appellate tribunal.

The constitutions of judicial tribunals are to be carefully distinguished from those laws which are made for the enlarging, defining or circumscribing the rights and liabilities of individuals constituting the community, over which the powers of legislation are exercised. From the former, a court derives its existence, its mode of being, and the essential qualities of its nature. They confer upon it its powers, define its jurisdiction, and limit its capacity. In expounding these fundamental laws, in which its judges have, if not a personal, yet an official interest, it can claim no right to bind the conscience or control the judgment of any other tribunal, not subordinate, before which the question may arise, whether its construction and judgment were right or wrong. It must be resolved by looking at the law itself.

The extraordinary or special powers conferred upon courts are of the same nature. Relating like them to their own power and jurisdiction, they have no exclusive right to judge of them, so as to silence the judgment of other tribunals, not subordinate, when the question is whether the power exercised has been conferred. In other words, the exercise of a power by a court does not prove the rightful existence of the power. And when a special power is conferred to be exercised in a certain mode, it is equally competent for another tribunal to consider whether the power has been exercised in the mode prescribed; for, in such case, the mode is an ingredient essential to the power, constituting, indeed, a condition on which the power depends. In such case the act is binding, or nugatory, as it pursues the mode or is done in disregard of it. And the record, to bind the rights of the parties, must show that the power has been exercised in strict conformity to the mode prescribed. It is not sufficient that the mode has been pursued in three out of four, or nine out of ten of its parts. It must be wholly pursued, to make the act valid. If twenty things are required by the law to be done by the court in exercising such special power, these being specially required, must not only be done, but specifically appear on the record to have been done. The omission of one is fatal; and a court, before which the adjudication shall be collaterally brought, cannot hold a right to be vested, or a title to be divested, by a record showing such an omission.

See Rose v. Himely, 2 Peters's Con. Rep. 100, 101, 102; Griffith v. Frazier, 8 Cranch 9; 3 Johns. Cas. 108; Rex v. Luke, 1 Cowper 26 (Lord Mansfield's opinion, p. 29); 1 Bur. 377; 4 Bur. 2244.

In Smith v. Rice, 11 Mass. Rep. 510, it is held, that although the court have jurisdiction of the subject matter, yet if the proceedings are not according to the course of the common law, and the statute be not strictly followed, the judgment is absolutely void, and vests no right. See also, Davol v. Davol, 13 Mass. Rep. 264.

The statute respecting attachments, in force at the time of these proceedings, will be found in 1 Chase's Stat. p. 462, passed in 1805. Section fifteen of this statute enacts:

'That the goods, chattels, lands, tenements, rights, credits, moneys and effects, of persons residing out of the state, shall be liable to be attached, taken, proceeded against, sold, assigned and transferred for the payment of their debts, in the same manner, as nearly as may be, as is herein provided, with respect to other debtors: provided, that instead of the oath or affirmation herein before provided, the applicant for such writ of attachment, his agent or attorney, shall make oath or affirmation that the defendant is not, at that time, resident within the state, as he verily believes; and that the said defendant is justly indebted to him in a sum of money, specifying as nearly as he can the amount of his demand or balance: provided also, that no judgment shall be entered by virtue of this section, until notice for the space of three months shall be given in one of the newspapers published in this state, of the issuing of such attachment, and at whose suit, against whose estate, from what court the same issued; and that unless the defendant in attachment shall appear, give special bail, and receive a declaration, judgment will be entered, and the estate so attached sold for the benefit of the creditors.'

For the other provisions regulating foreign attachments we are referred to those parts of the statute relating to domestic attachments. The first section relates to the oath to be taken by the plaintiff, the substance of which is changed, in the section just quoted, to accommodate it to the case of a non-resident debtor. It provides before what officer the oath may be taken; that it shall be taken and filed with the clerk of the court; and that any writ of attachment issued before the oath or affirmation be so taken and filed, shall be quashed on motion. Sections two, three, four, five, six and seven relate to the mode of executing the writ, garnishees, costs, trying the right of property, &c. Section eight is in these words:

'The court, at the return of such writ of attachment, shall appoint three discreet persons to audit and adjust the accounts and the demands of the plaintiffs, and so many of the creditors of the defendant in attachment, as may have applied to the court, or shall apply to the auditors for that purpose, before they shall have closed their report, which report shall be made in writing, signed by the said auditors, or any two of them, and shall be returned to the court from which such writ of attachment issued, and at the third term, including the term to which the writ of attachment was returned, final judgment shall be entered on such report: provided, that the defendant shall have been called three times, at each of the said terms, and have made default, and those defaults shall have been entered by the clerk,' &c.

Section eleven of this act is the last to which we deem it necessary to call the particular attention of the court. It authorizes the auditors, by virtue of an order from the court, to sell the lands and tenements, &c. attached: 'provided, that notice of such sale shall be set up in writing, at three of the most public places within the county, at least, or be advertised in a newspaper, published in the county, for the space of fifteen days, at least, prior to such sale; nor shall any sale be made of such lands and tenements, in less than twelve calendar months, from the return of such writ of attachment,' &c.

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