
    BARNAMAN a. WILLIAMS.
    
      Supreme Court, Eighth District;
    
    
      Special Term, July, 1864.
    Attachment in Justice’s Court.—Defective Return.
    Where, in an action commenced by attachment, before a justice of the peace, the attachment is not personally served, and the return states that a copy was left with the wife of one of the defendants at a place named, as the defendants could not be found in the county ; but the return does not state that she had possession of the property attached, nor that any inventory or statement of it was left with the attachment, the justice does not acquire jurisdiction by such service ; and if there be no appearance or waiver of the defect, the proceedings afford no protection to the plaintiff in the attachment in selling upon an execution subsequently issued, the property so attached.
    Motion for new trial on a case.
    The facts sufficiently appear in the opinion.
    
      Geo. W. Cothran, for the plaintiff.
    
      L. L. Lewis, for the defendant.
   Daniels, J.

This action was brought to recover the value of certain personal property claimed to be owned by the plaintiff, and wrongfully converted by the defendant. A verdict was recovered by the defendant, which the plaintiff now moves to set aside, and for a new trial.

The only questions arising upon the application depend upon the validity of proceedings taken in an attachment suit instituted by the defendant against the plaintiff, and another before a justice of the peace in Niagara county, of which county the defendants in that suit were non-residents. The attachment was issued on the second, returnable on the fifth of J une, 1862, and in his return upon it, the constable wholly omits to state the time when the seizure of the property was made under it. The attachment was not served personally on either of the persons named in it as defendants. But the return states that a copy of it was left with “ Barnaman’s wife at Martins-ville, as the defendants cannot be found in this county.” There is no statement whatever contained in the return from which it can be even inferred that she was the person having possession of the property attached when the seizure of it was made, or that any inventory or statement of the property attached was left with the copy of the attachment.

Before the justice was authorized to proceed with the action, it was necessary that he should have the officer’s return to the attachment, showing a service of it in the manner provided for by the statute. And as the defendants had no personal notice of the suit "by the service of the process upon them, it was vitally important that that the different steps prescribed should be accurately followed; for it was the only manner in which the justice could acquire jurisdiction.' The return of the officer is the evidence to be furnished to the justice that the statute has been complied with. (3 Rev. Stat., 5 ed., 432, § 33.)

In cases where the process is not personally served, the provision is an important one, which requires that a copy of the attachment, with an inventory of the’property seized, should be left with the person in whose possession the goods and chattels shall be found. (3 Rev. Stat., 5 ed., 431, § 28.) Éor the inference is a natural one that the owner will leave his property in the hands of one who is charged with the duty of protecting his interest in it. (The Mary, 9 Cranch, 144; 3 Curtis' Decisions U. S. Ct., 296.) Leaving-a copy of the attachment with Barnaman’s wife, without an inventory or any statement that the property had been seized under it, would be no notice to her, or any one else, that this property was to be affected by the proceedings, or that any steps were necessary for the protection of the owner’s interest in it, even if it were actually in her possession.

On these defects, without noticing others in the proceedings, they must be held to be so fatally defective, as not to afford any protection to the defendant (in this action) in the sale he afterwards made of the property under an execution upon the judgment recovered in that suit. There was no appearance or waiver of any kind of these omissions to conform to the statute.

The rule is well settled, that where a statute prescribes a new mode of proceeding, either unknown to the common law, or contrary thereto, the statute, so far at least as those parts of it essential to jurisdiction are concerned, must be not only pursued, but shown to have been strictly pursued, or the proceeding will be held a nullity. The same rule applies to courts of limited and special jurisdiction, as justice’s courts. Nothing is presumed in their favor, so far as it respects jurisdiction. And the party seeking to avail himself of their judgments must show that they had jurisdiction, affirmatively. Mills a. Martin (19 Johns., 7 ; 33 Cowen’s Tr., 2 ed., 405), where the same principle is affirmed in these words: “A justice is limited by statute to a certain course of proceedings, and unless those proceedings are adhered to, or waived by the party who has a right to insist on them, the judgment is irregular and void.” (Ib., 400, 403; Cow. & Hills’ Notes to Phil. Ev., Pt. 1, 468; Pt. 2, 206.)

The proceedings relied upon by the defence cannot be sustained without disregarding the principles so fully declared and sustained in these authorities.

The verdict rendered in favor of the defendant must therefore be set aside, and a new trial granted, with costs to abide the event of the action.  