of the defendant's claim as will satisfy the plaintiff's claim and give judgment for the defendant, for costs, or dismiss the suit altogether.1 A justice of the peace has jurisdiction in an action of trespass for injury to growing corn, if the damages claimed do not exceed one hundred dollars; and has jurisdiction in an action against a constable, for taking property not subject to levy; and against a constable and his sureties for the recovery of single damages for his malfeasance in taking such property. Single damages, likewise, can only be recovered before a justice of the peace in an action against the constable for taking property exempt from levy; but a suit should not be dismissed because the plaintiff has claimed for treble damages, by way of penalty, given by the statute, but the cause should be entertained and judgment given according to the evidence.1 In order to render the judicial proceedings or judgment of any inferior court valid, it is necessary that the court should have jurisdiction of the subject matter, and of the person.5 II. OF JURISDICTION, OF THE SUBJECT MATTER. It is a clear and salutary principle, that inferior jurisdictions not proceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them in every instance. The sound rule of construction in respect to the courts of justices of the peace, is, to be liberal in reviewing their proceedings as far as respects regularity and form, and strict in holding them to the exact limits of jurisdiction prescribed by the statutes. Where the justice has a general jurisdiction of the subject matter, and has obtained jurisdiction of the persons, whatever errors he may commit in the subsequent proceedings in the suit, will not render them void, but voidable only. If a court has no jurisdiction of the subject matter of the suit, consent of the parties cannot confer it, although it may take away error. The law is well settled that in order to justify a court not of record in taking cognizance of a cause, it must have jurisdiction of the subject matter as well as of the person of the defendant. (1) 3 Scam. 298. (2) 14 Ill. 257. (6) 1 Johns. cas. 20; 3 Scam. 194. (3) 15 III. 39. (4) Ibid. (7) Breese 32; 12 III. 122. (5) 5 Wend. 170. (8) 1 Scam. 558. III. OF JURISDICTION OF THE PERSON. The individual proceeded against, must in general, be notified in some legal form, in order to give the court or justice jurisdiction over him, for it is an indispensable requisite that before the rights of a party can be determined, either civilly or criminally, he shall have notice of the proceedings to be had, that he may have an opportunity of defending himself.1 It is essential to the exercise of all jurisdictions rendering judgments or decrees, affecting the person or property of the individual, where the proceeding is by summons directed to the defendant, that they should have indisputable evidence before them that the party to be affected by their judgment or decree is regularly before them, or, in other words, has been regularly summoned otherwise their proceedings are coram non judice, consequently, irregular and void. appearance must be either actual or constructive. The plaintiff in a case where the defendant does not appear, proceeds at his peril; he is bound to see that all the antecedent proceedings are regular, and if they are not, he necessarily consents to meet the consequences of such irregularities. If the defendant appears, however, and proceeds in the cause without objection to the process or service thereof, this will cure not only all defects and informalities therein, but also the want of process. 8 Objections to the proceedings of the justice on the ground that the defendant has had no notice, or but an insufficient notice of such proceedings, are in the nature of a plea in abatement to the jurisdiction of the justice, and are required to be made at the first moment at which the defendant is able to make them; any objections to the process should always be made in the first instance; it will be too late after pleading and going to trial.5 A justice can render judgment against a defendant only where process is personally served on him, or he appears in person before the justice and waives process. A defendant cannot authorize a justice to render judgment against him by sending a letter to such justice requesting him to enter judgment against the defendant in favor of the plaintiff, for an amount named in the letter, although the defendant expressly state that he waived (1) 4 Bl. Com. 282; 1 Scam. 517. (4) 4 Scam. 176. (2) 1 Scam. 174. (3) Id. 267. the service of the process and authorized the judgment. A judgment obtained under such circumstances is not only voidable, but totally void, and no one can acquire any benefit or right under it.1 But notice to the defendant need not in all cases be personal; the legislature may prescribe what notice shall be sufficient. Thus in suits by attachment against the property of the defendant, personal service is in certain cases dispensed with, and the justice may entertain jurisdiction of the cause, and render judgment for certain purposes. IV. OF PROCEEDING WITHOUT JURISDICTION. It is a general and well settled rule, that where a court of special and limited jurisdiction, like that of a justice of the peace, has neither jurisdiction of the subject matter of the suit, nor of the person of the defendant, everything done therein is absolutely void, and all are trespassers who are concerned in the proceedings. But this rule, so far as respects the officer serving the process, is somewhat modified. 2 8 A justice may also be liable as a trespasser, where there is not a total want of jurisdiction, but where some proceeding or proof is wanting, which is necessary, in order to give him authority to act in the particular case; as, if he issue an attachment without any proof of absconding or concealment, as provided by the statute in such cases, which being executed, not only the justice, but also the plaintiff, would be liable as trespassers; but in such case the constable would be excused, the process being regular upon its face.1 In justices' court, no formal plea to the jurisdiction of the court is necessary. The question may be raised, and objection stated, at any stage of the proceedings; and the justice, upon becoming satisfied that he has not jurisdiction, should at once dismiss the cause. (1) 2 Scam. 468. (3) 5 Wend. 170; 6 Id. 367. (2) Breese 144; 12 Johns. 265; 15 Id. 152; 16 Id. 145. (4) 11 Johns. 175; 3 Cowen 206. CHAPTER III. OF THE DIFFERENT FORMS OF ACTIONS. I. WHAT ACTIONS MAY BE BROUGHT BEFORE JUSTICES OF THE PEACE. III. OF THE ACTION OF COVENANT. VI. OF THE ACTION OF TROver. I. WHAT ACTIONS MAY BE BROUGHT BEFORE JUSTICES OF THE PEACE. Actions that may be brought before be here noticed, are of two kinds, viz. : justices of the peace, which will those founded on contracts, ex press or implied; and those founded on torts, or wrongs. Those founded on contract, are Debt, Covenant and Assumpsit; those on torts, or wrongs, are Trespass and Trover. While the principles of law, by which these several actions are distinguished, are of great importance to the lawyer, and are more closely regarded in courts of record, they are, under our statute, at least, of but little practical use to a justice of the peace. The cause of action should, in general, be stated on the docket, by either copying the bill of particulars, note, or contract filed by the plaintiff, by briefly noting its contents, or by stating in substance the nature of the plaintiff's claim; yet it is not always absolutely necessary, and in general it may be more safe not to designate the name of the action. It will only be necessary, therefore, to define in general terms, the different actions. II. OF THE ACTION OF DEBT. This action is so called because it is in legal consideration for the recovery of a debt.1 Formerly, in this action, the plaintiff was bound to prove the whole debt he claimed, or recover nothing at all. The debt, being one single cause of action, fixed and determined, and, therefore, if the proof varied from the claim, it could not be looked upon as the same contract whereof the performance was sued for. But this is no longer the case, for it is now completely settled, that the plaintiff in an action of debt may prove and recover less than the sum demanded by the writ.2 It is not advisable to bring this action except in cases where no other action will lie. A greater degree of nicety is necessary in prosecuting it, than in covenant or assumpsit, which will lie in a great variety of cases upon contract where debt may also be brought. The cases in which debt is the sole remedy, may probably be reduced to the following: 1. Debt on a penal or single bond. 2. On judgments in courts of record, and likewise in justices' courts. 3. For various penalties imposed by statute. As a general rule, however, debt will lie upon any contract, whether under seal, written, verbal, express or implied, where the demand is for a sum of money certain, or a sum that is capable of being readily reduced to a certainty; as, for goods sold, money lent, paid, had and received, and upon a promissory note, bond, or other contract, for the payment of money. III. OF THE ACTION OF COVENANT. This action lies to recover damages for the breach of a contract or agreement under seal, and it cannot be maintained except upon a sealed instrument. Covenant is the only remedy for the non-performance of a contract or agreement under seal, where the damages are unliquidated, or cannot be ascertained from the instrument itself; for in such case debt will not lie, and assumpsit will not ordinarily lie on a sealed instrument. Covenant is the usual remedy on all contracts or agreements under seal. It is not essential that the word covenant should be in the instrument in order to render the defendant liable in covenant; words to that effect will be deemed sufficient. (1) 1 Chit. pl. 123. (3) 16 Johns. 233. (2) 3 Bl. Com. 154 n; 2 Chitty Pl. 285, note o; 11 East 62. |