Tallman v. Bigelow

10 Wend. 420

Opinion

By the Court,

Nelson, J.

The power of this court to revise and correct the errors of inferior tribunals, so far as the jurisdiction of such tribunals is concerned, and the determination of questions of law arising before them and apparent upon the record or history of the proceedings, has been too often adjudged to admit of question. 2 Caines, 179. 20 Johns. R. 430. 5 Wendell, 98. 6 id. 564.

There can be no doubt the justice erred in issuing the attachment in this case, the affidavits of the plaintiff and of the witnesses being clearly defective, within the provisions of the statute, 2 R. S. 230, § 28. The case does not turn, as supposed by the counsel for the defendant, upon the question whether there was enough to give jurisdiction to the justice, so as to sustain the judgment until reversed, within the decision in 11 Johns. R. 175, but whether the justice erred in the application of the rules of law in any part of the proceedings, as may appear from the return to the writ. There probably was sufficient to protect the justice, and all others acting under the judgment, until its reversal; but the affidavits, without which the justice was not authorized to issue the attachment, are necessarily a part of the record, and are properly returned by the justice; and we cannot but see that he erred in adjudging them sufficient within the statute. The judgment must be reversed, but no costs can be awarded to the plaintiff; these cases are not embraced within any of the provisions of the general statute concerning costs, 2 R. S. 612, Vide 7 Cotcen, 536. There are some special cases where costs are g¡ven Upon certiorari to this court, 2 R. S. 604, § 77; but

this is not of the number.

Judgment reversed.