Aten v. Morgan

1 Tapp. Rep. 232

Opinion

This case is fully stated in the opinion of the court, which was now delivered by the

President.

This is au action of assumpsit; the first count of the declaration is an indebitatus for the use and occupation of a certain dwelling house, buildings, and land; the second count is a quantum menuil,iot the like use and occupation; the third count, is on an award, and the fourth on au account stated. To this action the defendant has put in two pleas, first, the general issue to the whole declaration; and secondly, “ that before the commencement of tiiis suit, to wit; on the 7th day of May, in the year 1814, the said Henry and the said Samuel, amicably entered suit, before George Clark, Esquire, a justice of the peace in said county, duly qualified, for the same identical promises and undertakings, on which such proceedings were thereon duly had, tha.t afterwards, on the 28th day of the same month of May, the said Henry, by the consideration and judgment of the said justice, recovered judgment against the said Samuel, on said suit, for his damages and costs; whereof the said Samuel was convicted, as by the docket of said justice, a transcript whereof is now here in court, will more fully and at largo appear” — with au averment that tbe justice’s judgment was for the same promises, and that it still remains in full force. Hpou these pleadings, the parties are at issue, and by agreement the cause lias been heard by the court, and is to be decided without the intervention of a jury.

It is first necessary to consider the evidence adduced to support the defendant's special plea, because, if that is proven, it is decisive of tbe rights of tbe parties in this action.

A transcript from tbe docket of Mr. justice Clark, 1ms been read, and relied on by tbe defendant, as proving the averments in his second plea. This transcript sets forth, that these parties, on the 7th May 1814, appeared, and amicably agreed to submit their difference to the arbitrament and final decision of J. E. E. B. and J. F. to meet at the justice’s on the 28th May; that on the 28th May, the parties, witnesses, and arbitrators met; that the witnesses and arbitrators were qualified, « who, after making an examination, inade out their award, and brought in damages in favor of the plaintiff, 150 bushels of Corn or Eye, to be delivered in Fishel’s mill, against the 30th day of January, 1815.” Then follows: “judgment is rendered thereon for the same and cost of suit ” — then a bill of cost is made out, and “ 4th April, 1815, Execution issued for §112 50,” or $120 15, it is uncertain which.

It is well established, that the judgment of an inferior court must appear, on the face of it, to have been rendered in a matter of which such court had jurisdiction, or it is voidable. If it appears, on the proceedings of such court, that it has adjudicated on a matter without its jurisdiction, such proceedings are wholly void ; the proceedings of the justice in this instance are of the latter description. The statute law in force at the time, 8th Vol. page 515, extended the jurisdiction . of justices of the peace, in civil cases, to any sum not exceeding seventy dollars, and provided, page 159, “ that when parties agree to enter, without, process, before any justice of the peace, any action herein made cognizable before h im, such justice shall enter the same on his docket,” &c. — And further, page 520, “that anv time before judgment is entered for any sum, the plaintiff and defendant agreeing thereto, may have the cause submitted to the arbitration of three disinterested men,” &c. The law gives to a justice of the peace jurisdiction to any sum not exceeding seventy dollars ; consent of parties can never give jurisdiction to a court, in a case where no sum, in damages, was demanded, where no cause of action is set forth; the justice has proceeded to render a judgment altogether void for its uncertainty, it not being for any sum whatever, and has afterwards proceeded to issue an execution for forty-two dollars and fifty cents or more, beyond the utmost limit of his jurisdiction. If we are to intend the judgment to have been given for any sum of debt or damages, from the execution issued, and thereby attempt to support the judgment, such calculation would make the amount of .the judgment one hundred and twelve dollars and fifty cents, exclusive of costs and interest, a judgment not warranted by law, and therefore void.

The transcript exhibited in support of the plea in bar, being then of a proceeding coram non judice, cannot- be received as evidence, an(^ ^*e plaintiff must therefore, have judgment on the issue joined upon that plea.

The plaintiff relies on the award set forth in this trauscript, in support of the third count in his declaration; and if the parties have submitted any manner of difference to arbitration and such matter has been heard and decided between them, by judges of their own choosing, such decisions may be good evidence on this count, the interference of the justice being wholly illegal and void, cannot effect and vitiate a legal submission and award; but the certificate of the justice cannot be received as competent evidence of any act done by others concerning which he had no cognizance; it is no evidence in this matter, of the submission or award, because he had no authority to certify it. In this respect his act is of no more validity than would have been the certificate of any other spectator of the transaction, so that the third count in the plaintiff’s declaration must rest wholly on the parole evidence adduced in its support, and that it is very loose and unsatisfactory, not informing us what matters were submitted by these parties, or what was awarded by the arbitrators; it goes no further than to prove, that at some time a claim of the plaintiff» for rent, was arbitrated between him and the defendant; this defect of proof has arisen, probably, from the parties both relying on the tran - script of the justice as evidence. The plaintiff, in support of his third count, and the defendant of his plea in bar, as it is the the third count» remains unsupported by evidence, and the same observation may be made as to the fourth count.

To entitle the plaintiff to recover on the first or second count, it is in proof that the defendant had the use and occupation of fifty or sixty acres of the plaintiff’s land several years, for the last year of which he has made no compensation to him; taking into consideration all the testimony as to the value of such use and occupation, on the very loose evidence exhibited, we assess the plaintiff’s damages on the second count of his declaration, at. 50 dollars.