Toof v. Bently

5 Wend. 276

• Court: New York Supreme Court
• Decided: July 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The justice had jurisdiction ; the judgment was regular. If the execution had been returnable in ninety days, the officer would have been justified. The defendant in the execution (the plaintiff here) was not injured by the error in the return of the execution ; but it is well settled that inferior and limited jurisdictions must be confined strictly to pursue the authority given them. The justice had no more authority to issue an execution, in the case before him, returnable in 60 days than in 30 days or even in 10 days; and surely such an execution would be no protection to the officer, because on the face of the process it was not such an one as the justice had authority to issue upon such a judgment. In my opinion, therefore, the execution was no justification.

On the ground of variance also, the execution was not properly admissible. The plea described an execution returnable in 90 days, that produced was returnable in 60 days. The defendants below could derive no advantage from the alteration in the execution made after it had been executed. Under such circumstances, the justice had no power to amend it. Courts of record have power to make such amendments, and usually, in cases of mistake, require a stipulation not to prosecute. A justice has no such power, and can require no such condition. The execution, therefore, was not such an one as that set forth in the plea.

Judgment reversed, and venire de nova to Dutchess common pleas.