McFadden v. Whitney

• Court: New Jersey Supreme Court
• Writing for the Court: VAN SYCKEL, J.
• Citation: McFadden v. Whitney, 18 A. 62, 51 N.J.L. 391 (N.J. 1889)
• Decision Date: 15 June 1889
• Parties: JAMES McFADDEN v. JOHN P. WHITNEY AND THOMAS W. SYNOTT, PARTNERS

18 A. 62

51 N.J.L. 391

MCFADDEN

v. WHITNEY et al.

Supreme Court of New Jersey.

June 17, 1889.

(Syllabus by the Court.)

Rule to show cause. Error to circuit court, Gloucester county; before Justice REED.

Argued at February term, 1889, before the Chief Justice and DEPUE, VAN SYCKEL, and KNAPP, JJ.

John W. Westcott, for plaintiff. Thomas E. French, for defendant.

VAN SYCKEL, J. In January, 1887, the defendants caused a writ of attachment to be issued by a justice of the peace against the plaintiff for the sum of $200. Under this attachment the goods of the plaintiff were attached and sold. On the 8th of February, 1887, this suit was discontinued, and the defendants caused another attachment to be issued against the plaintiff out of the Gloucester county circuit court. Under this second attachment the same goods of the plaintiff were again attached. The second writ of attachment was afterwards quashed by said circuit court, on the ground that at the time of the issuing of the writ the defendant in attachment was a resident of the state of New Jersey. The plaintiff then brought this suit for the wrongful taking and detention of his goods under the two writs of attachment.

The trial court, upon this state of facts, charged the jury that the defense was complete under the writ of attachment, and directed a verdict for the defendants. A justice of the peace cannot issue an attachment for a debt which exceeds the sum of $100. Wright v. Moran, 43 N. J. Law, 49. The justice, therefore, had no jurisdiction. The first seizure of the plaintiff's goods, being under a void writ, was without justification. The defense cannot rest upon the first writ of attachment.

The only question in the case is whether the quashed writ furnishes immunity to the defendant for acts done under it before it was set aside. In Codrington v. Lloyd, 8 Adol. & E. 449, an arrest was made under a process which was afterwards set aside for irregularity. Lord DENMAN held that the party who had sued out the writ was liable to an action for damages; that the process, when set aside, must be regarded as if it had never existed, and therefore the defendant could not justify under it. The rule laid down in the English cases is that process issuing irregularly from a court of competent jurisdiction to a proper officer will justify such officer, acting under it, a long time before it is vacated, but that such process, when vacated, is no justification to the party who procured it to be issued. Parsons v. Lloyd, 2 W. Bl. 845; King v. Harrison, 15 East, 612; Grant v. Bagge, 3 East, 128. This is also the established doctrine in New York. In Chapman v. Dyett, 11 Wend. 31, the suit was for false imprisonment under a ca. sa. set aside as irregularly sued out. Chief Justice SAVAGE, in delivering the opinion of the court said: "When the ca. sa. was set aside for irregularity, it ceased to be a justification to the parties guilty of the irregularity. As to them it is void, and as if it had never existed. The arrest, therefore, by relation became void and without authority." In Lyon v. Yates, 52 Barb. 237, it was held that, after an attachment under which goods have been seized has been set aside as irregular, it affords no shield or protection to the plaintiffs for such taking. The moment it is set aside they stand as though no process had ever been issued, and become trespassers ab initio. Kerr v. Mount, 28 X. Y. 659, is to the same effect, as is also Hayden v. Shed, 11 Mass. 501. What the irregularity was for which the process had been set aside in Codrington v. Lloyd, does not appear in the report of the case. In all the other cases which have been cited the fatal irregularity consisted in a failure to take the steps necessary to entitle the party to sue out the writ. They were irregularities which, on the face of the proceedings, showed that the process could not lawfully issue. In Parsons v. Lloyd the capias was set aside because a term intervened between the teste and the return. In King v. Harrison the ca. sa. was sued out for over £1,200, when but £300 were due upon the judgment. In Grant v. Bagge, the fi. fa. was directed to the wrong person. In Chapman v. Dyett the ca. sa. was declared to be irregular because it was sued out previous to the issuing of a fi. fa. In Lyon v. Yates the affidavits on which the attachment issued were insufficient, and not in conformity to the requirement of the law. In Kerr v. Mount it appeared on the face of the proceedings that the writ should not have issued. But in the case before us there is an element which is absent in every case before cited, which, in my judgment, must draw to it the application of a wholly different rule, by which the availability of the attachment as an arm of defense is to be tested.

The attachment act authorizes an attachment to be issued when the creditor makes oath that he verily believes that his debtor absconds, or that his debtor is not, to his knowledge or belief, resident in the state. In Lummis v. Boon, 3 N. J. Law, 707, Mr. Justice PENNINGTON suggested a doubt whether the affidavit of the plaintiff was not conclusive. That doubt was removed by the case of Bank v. Merrit, 13 N. J. Law, 131, in which Chief Justice EWING delivered the opinion of the court, holding that the affidavit of the plaintiff in attachment...