
    Stanton v. Schell.
    Where affidavits and papers on which a warrant of arrest is applied for under the act abolishing imprisonment for debt, state that a suit has been commenced by the applicant upon a judgment obtained by him .against the party for whom the warrant is asked, stating its date and amount ; this is a sufficient allegation of a cause of action arising upon contract for which the party cannot he imprisoned.
    The proceedings being founded upon the suit, and not on the judgment, it is unnecessary that there should be any proof of a demand and refusal to apply property in payment of the judgment, to authorize a commitment.
    When a judge, upon a hearing before him, admits evidence which is insufficient or incompetent, it constitutes an error of judgment, which is remediable only in a direct proceeding to reverse his commitment. The jurisdiction of the judge does not depend on his deciding correctly in respect of the kind or weight of evidence adduced, when the allegations are properly made, and the testimony offered tends to sustain them.
    When an inferior tribunal acts without acquiring jurisdiction, its proceedings afe void, and ail concerned are trespassers. But where it has jurisdiction, and then errs iri the exercise of its powers, the act is erroneous, and may be avoided oil certiorari, but it is not void.
    Where, after a judge has acquired jurisdiction of an application for a warrant of commitment under the non-imprisonment act, an injunction, staying further proceedings in the matter, is served, whereupon the judge suspends the, matter, pending the injunction, instead of adjourning it, and after the injunction is dissolved, pronounces judgment in the absence of the defendant, these errors, if they be such, are mere errors of judgment, and do not oust the judge of his jurisdiction, nor subject him or the applicant to an action of trespass or false imprisonment.
    (Before Oakley, Cn. J., and Vaxuerpoel and Savdford, J.J.)
    Nov. 12;
    Nov. 24, 1849.
    Tins was an action of trespass and false imprisonment. The complaint alleged, that, in August, 1848, the plaintiff obtained from the Hon. John W. Edmonds, one of the justices of the supreme court, a warrant of commitment against the plaintiff, under the pretence of a conviction under the non-imprisonment act; that the warrant was issued without any authority or jurisdiction on the part of the justice ; and that under it the plaintiff was arrested and imprisoned for the space of four hours.
    The answer of the defendant averred, that, on the 5th of August, 1845, he recovered a judgment in the supreme court for the sum of $1,936 02 against the plaintiff, upon which judgment he had commenced a suit. That, subsequent to the commencement of the suit upon the judgment, and on the 10th of April, 1848, he applied to Judge Edmonds, for a warrant of arrest against the plaintiff under the non-imprisonment act. That the application was accompanied by satisfactory evidence of the existence of a debt due from the plaintiff, specifying the nature and amount thereof as near as might he, and also evidence, that the plaintiff liad property which lie fraudulently concealed, and that lie had assigned and disposed of some of his property with intent to defraud his creditors. That evidence was adduced by the affidavit of the defendant, and the answer and depositions of the now plaintiff upon the judgment. That, upon the hearing, the plaintiff controverted none of the facts and circumstances, and the hearing was adjourned until April 26, 1848, at which time the parties appeared, and an order for an injunction was exhibited to Judge Edmonds, issued out of the supreme court., on the prayer of the plaintiff, commanding the defendant to desist from further proceeding in the matter until the further order of the court. That thereupon the proceedings were suspended until the dissolution of the injunction ; after which, and on the 23d day of August, Judge Edmonds, deciding the facts to be sufficiently established, granted the warrant of commitment, under which the plaintiff was arrested. The warrant was set out at length in the answer. The answer denied the want of jurisdiction in the judge.
    The reply stated, that the affidavit of the defendant, upon which the application to Judge Edmonds was made, did not specify the nature and amount of indebtedness as near as it might be, and that it was impossible to determine from the affidavit, whether the same was upon the judgment or the proceedings upon the same. That, upon the hearing, the plaintiff controverted the facts and circumstances of the application, and no proof was offered by the defendant, and no hearing had ; that no judicial determination was made by Judge Edmonds, as averred in the answer, and that he had no authority over the matter by reason of the proceedings being suspended at the time of the injunction. That the plaintiff was not in the presence, or under the jurisdiction, or control of the judge at the time of the issuing the warrant, and that he had no notice to appear before him on that day, or any information thereof, and that tliere was no jurisdiction or authority for the commitment.
    The cause was tried on the 10th of May, 1849. Upon the trial, after reading the pleadings, the counsel for the plaintiff offered in evidence the affidavit and papers on which the application for the warrant was founded, in order to show their insufficiency.
    The parts thereof which were applicable are as follows :
    “ City and County of New York, ss :
    “ 'Robert Schell of said city, being duly sworn, saith, that Henry Stanton, of the city of Rochester, in the county of Monroe, is justly indebted to this deponent in the sum of two thousand dollars and upwards, upon a judgment rendered in the supreme court of the state of New York, and also in the sum of two hundred and thirty-five dollars and upwards, upon another judgment rendered in the same court, which said judgments respectively are founded upon contract, and for which said demands the said Henry Stanton cannot be arrested or imprisoned, according to the provisions of an act entitled, ‘ an act to abolish imprisonment for debt, and to punish fraudulent debtors,’ passed April 26, 1831 ; and this deponent further saith, that an ordinary creditor’s suit in equity has been instituted by this defendant against the said Henry Stanton and others, and is now pending in the supreme court of this state, for the purpose of recovering and obtaining satisfaction of the said judgment herein first mentioned, and this deponent further saith, that he verily believes that the said Henry Stanton has property and fights in action, namely an interest in a stock of jewelry and other merchandise, in a store in the city of Rochester, and in the proceeds of jewelry and merchandise heretofore sold in said store and elsewhere, which he fraudulently conceals, and that he has rights in action, money, and evidences of debt, which he unjustly refuses to apply to the payment of the said judgments, or either of them, and that he has assigned and disposed of some of his property with the intent to defraud his creditors, — and this deponent further saith, that a copy of the amended bill of complaint, filed by him in the suit, aforesaid, is hereto annexed, marked schedule A; that a copy of the answer put in by the said Henry Stanton, to the said amended bill, is hereto annexed, marked schedule B; and that the paper hereto annexed, marked schedule C, is a copy of an examination and deposition of the said Henry Stanton, made before John. W. Dwinnelle, Esq., who at the date thereof was one of the masters in chancery, in and for the said county of Monroe, — and this deponent, further saith, that on or about the 25th day of November, 1846, deponent requested the said Henry Stanton to apply certain securities, which he then had, and as deponent believes the bonds and mortgages hereinbefore mentioned, on deponent’s said debt for what they were worth, and that the said Henry Stanton refused so to do, but offered to transfer them to deponent absolutely in payment of the same.”
    It appeared by the copy of the amended hill of complaint annexed to the affidavit, that the original bill, of which that was a copy, was duly verified by the oath of .Robert Schell, and stated that on the fifth day of August, 1845, Schell recovered a judgment in the supreme court, against Stanton, for the sum of $1936 02, for the damages vdiieli Schell had sustained, as well by reason of the non-performance of certain promises and undertakings then lately made by Stanton to him, Schell, as for the costa of the suit in which the judgment was recovered. The plaintiff’s counsel then read in evidence the affidavit of the plaintiff controverting the facts and circumstances on which the application for the warrant was founded, the substance of which is as follows:—
    “Henry Stanton, of Rochester, Monroe county, being duly sworn, deposes and says, that he has no right in action or property, except such as by law is exempt from execution, that he has no interest in any stock nor in the proceeds of any jewelry or merchandise heretofore sold in any store, which he fraudulently conceals, and that he has no right in action which he unjustly refuses to apply to the payment of the judgments named in the affidavit of Robert Schell in this matter or to either of them, and that lie has not assigned or disposed of any of his property with intent to defraud his creditors,
    “And this deponent further says, that in or about November, 1846, this deponent had an interview with Robert Schell, and told him that he would get some bonds and mortgages, and pay him off if he would take them. He wished to know what they were, and deponent said that if he would say that he would take them, then tin's deponent would see what ones he could get. But this deponent did not mention any particular bonds and mortgages, and this deponent verily believes that the bonds and mortgages hereinbefore mentioned, had then been disposed of,”
    It was admitted by defendant’s counsel, that during the spring of 1847, a receiver had been appointed in the creditor’s suit named in the application of the defendant against the plaintiff for a warrant, and that the plaintiff had, at that time, executed an assignment to the receiver, of all his assets and effects.
    The plaintiff’s counsel then read the commitment, from the answer, from which it appeared that no adjournment of the proceedings before Justice Edmonds was made from and after the 26th of April, 1848, and he contended that Mr. Justice Ed-monds lost jurisdiction of the proceedings, by reason of such non-adjournment. The plaintiff then rested his case.
    The defendant’s counsel then moved for a non-suit, but the court denied the motion.
    The deputy sheriff testified to the arrest of the plaintiff, under the warrant of the commitment, It was admitted that at the time the commitment was made, the plaintiff was not present before Judge Edmonds,
    The case was submitted to the jury upon the question of damages: the question of law involved being reserved for the consideration of the court, with liberty to the defendant to move to enter a nonsuit. The jury found a verdict in favor of the plaintiff for $50 damages.
    
      
      A. Crist^ for the plaintiff.
    
      J. W. Gilbert, for the defendant.
   By the Court.

Sandford, J.

The plaintiff’s first point is, that the judge who granted the commitment never acquired jurisdiction in the proceeding against the plaintiff under the act of 1831.

We think that this view of the matter is erroneous : —l. The affidavit and papers on which the warrant for the plaintiff’s arrest was issued, do state both the nature and the amount of the indebtedness in precise terms. They show that Schell had commenced a suit on a judgment, stating its date and amount. This was a sufficient allegation of a cause of action arising upon a contract, for which the plaintiff could not be imprisoned.

2. The proceeding was evidently founded upon the suit brought to obtain satisfaction of the judgment. This disposes also of the fourth objection taken by the plaintiff. The proceeding was not founded upon his refusal to apply his property to the payment of the judgment.

3. The remaining objection, was to the judge’s reception of the answer and examination of the plaintiff in the pending suit, as a part of the evidence on which the warrant for the arrest-issued. Whether the judge were right or wrong, in receiving tills evidence, we need not determine; because, if he were wrong, it does not affect the question of jurisdiction. There was other evidence of undoubted propriety, which tended to prove the case alleged before the judge. If that evidence were insufficient., or if the judge admitted evidence that was incompetent, it constituted an error of judgment which was remediable only in a direct proceeding to reverse his commitment. It cannot affect tbe warrant, in a collateral suit. The jurisdiction of the judge does not depend upon his deciding correctly in respect of the kind or -weight of evidence laid before him, when the allegations are properly made, and the testimony offered tends to sustain them.

We have no doubt, therefore, that the judge acquired jurisdiction. The plaintiff was regularly arrested and brought before him, was subsequently adjudged to be guilty of the offence alleged, and was committed.

It is next claimed on his behalf, that the commitment was void, because the judge lost jurisdiction, intermediate the arrest and the adjudication.

Granting to the plaintiff all that he argues, as to the irregularity of the proceedings, and that he can be permitted, after suspending the judge’s action by an injunction, to urge such suspension as having wrought a discharge to him from his arrest under the warrant; it does not follow that the commitment was void.

The principle is, that where an inferior tribunal acts without acquiring jurisdiction, its proceedings are void, and all concerned are trespassers. But where it has jurisdiction, and then errs in the exercise of its powers, the act is erroneous, and may be avoided on certiorari, but it is not void. Here the judge had acquired jurisdiction. The plaintiff contends that he erred in suspending the matter pending the injunction, instead of adjourning it, and in pronouncing his judgment in the absence of the party accused. If the judge erred in both of these particulars, they were errors of judgment, and the plaintiff might have reversed the adjudication. They did not, however, oust the judge of his jurisdiction, nor subject him, or, consequentially, the party prosecuting before him, to an action of trespass or false imprisonment. We might refer to many analogous cases decided in the courts of this state. The principle is very well exhibited in Horton v. Auchmoody, 7 Wend. 200. We have looked into all the authorities which were cited by the plaintiff, and find that they were cases in which the court or officer never acquired jurisdiction of the subject matter, or of the party proceeded against. They do not conflict with the principle on which we rely, and in some of them it is expressly sanctioned.

The judgment entered for the plaintiff, at the special term, must be reversed, and a judgment of nonsuit entered, pursuant to the stipulation between the parties.  