
    J. M. Devall v. Joy Taylor.
    Proceedings before an inferior Court are void, unless they carry upon their face the evidence of jurisdiction; and, therefore,
    The oath upon which a Magistrate issues an attachment, though it need not be taken in writing, must be recited in the writ.
    An affidavit in the disjunctive (of one or the other) of two facts, would be bad to sustain an attachment, though either, positively deposed, might be sufficient.
    An affidavit that defendant ‘ ‘ is about to remove out of the State personally, ’ ’ will not sustain a domestic attachment.
    Before Earle, J., at Abbeville, Fall Term, 1839.
    The affidavit to a writ of domestic attachment, stated that the defendant “ was about to remove out of the State personally, or so absconded and concealed himself, that process could not be served upon him.” The writ was quashed, for insufficiency in the affidavit to give jurisdiction to the Magistrate. This order the plaintiff moved the Court of Appeals to set aside.
   Curia per Earle, J.

The attachment acts authorize Justices of the Peace to grant writs of attachment in certain cases, on the oath of the plaintiff, returnable either to the next Court for the district, or before themselves, according to the amount sued for. The cases provided for, in which Justices have this extraordinary jurisdiction, are, 1. Where the debtor is removing out of the district privately; 2. Where he absconds and conceals himself, so that the ordinary process of law cannot be served upon him; and 3. Where he intends to remove his effects. Although it has been held, in M’Kenzie v. Buchan, (1 N. & M’C. R. 205,) that the., oath of the plaintiff, establishing the particular state of facts which gives jurisdiction to the Justice, need not be in writing; yet it is clear, both on general principle and on authority, that it should be recited in the writ. This is universally true of all Courts of inferior and limited jurisdiction — that their proceedings must show, upon their face, that the subject-matter is within their jurisdiction, else they will be regarded as nullities. And very many cases will be found in the English books, and in our own, of their being quashed on motion. The general rule, as stated by the Court in Winford v. Powell, (2 Ld. Raym. 1310,) in regard to inferior Courts, is, that nothing shall be intended to be within the jurisdiction, that is not expressly averred so to be; though, in the case of a superior jurisdiction, nothing shall be intended out of it; (the same in 5 Mod. 322; 6 Mod. 223.) Str. 8; 6 Term, 583; Whenever a special authority is given to Justices, it ought to appear that the authority has' been exactly pursued. Lord C. J. Pratt said, in a case before him, “ I do not see to what purpose we exercise a superintendency over all inferior jurisdictions, unless it be to inspect their proceedings and see whether they are regular or not. I have often heard it said, that nothing shall be presumed one way or the other in an inferior jurisdiction.”

If the proceeding show upon its face that the Justice had no authority to grant the attachment, or if it fail to show that he had, then no judgment could be given upon it, either by himself, or by the Circuit Court; but the whole is an absolute nullity, and it is of no consequence in what way the defect is brought to the view of the Court, or at whose motion it is quashed. Hagood v. Hunter, (1 M’C. R., 511,) is exactly this case; and, perhaps, it would have been enough to refer to it. There the affidavit was, that the defendant was “about to remove from and without the limits, or so absconds and conceals himself,” &c. Here he is “ about to remove out of the State personally, or so absconds and conceals himself,” &c. To authorize the attachment, there should be a precise allegation of some one of the three categories which give jurisdiction. To be “about to remove out of the State personally,” is very different from being in the act of “ removing privately out of the district;” and there is as much reason to suppose the writ issued on that part of the oath, as on the other. Indeed, I would consider an affidavit, or recital of one, in the disjunctive, as bad, although either of the facts deposed to might be sufficient.

See 5 Rich. 478 ; 4 Rich. 561; 4 Strob. 290; 2 McM. 335 ; 1 McM. 461, 264. An.

Wardlaw and Perrin, for the motion.

Bart and Thompson, contra.

This case is very unlike those of Havis v. Trapp, and Grisham v. Deale, (2 N. & M’C. R. 130.)—There, the motion was to allow defendant to introduce affidavits of himself and others to contradict the oath of the plaintiff, and to quash the attachment because it was not true. This was refused, because it made up a collateral issue, where the Act had provided that the plaintiff’s oath alone should be sufficient; and the Court properly refused to go into evidence aliunde, when the attachment was regular and valid on its face.

Motion dismissed; the whole Court concurring.  