Abbott v. Yost

2 Denio 86

• Court: New York Supreme Court
• Decided: January 15, 1846
• Status: Published

Opinion

By the Court, Bronson, Oh. J.

Process regular upon its face, and apparently within the jurisdiction of. the court or officer issuing it, is a complete justification to the ministerial officer by whom it is executed; and that is so, although it may be shown that in point of fact the court or officer issuing the process had no jurisdiction. When the defect of jurisdiction appears upon the face of the process, there the ministerial officer acts at his peril; but it is not so where the defect is latent, and has to be made out by extrinsic evidence. In Savacool v. Boughton, (5 Wend. 170,) it appeared that in point of fact the justice Avho rendered the judgment against the plaintiff had no jurisdiction; but as it was a case where he might have acquired jurisdiction, and the want of it did not appear upon the execution under which the constable acted, the process was held to be a complete justification.

The erroneous decision of the justice has been properly corrected by the common pleas.

Judgment affirmed.