
    Walker and others, vs. Wynne and others.
    
    A magistrate has no power or jurisdiction to issue an attachment returnable before himself, where the debt exceeds twenty dollars : a judgment rendered by him in such case is absolutely void.
    Attachments must issue under the seal of the justice, and the proceedings must show that the debt was sworn to.
    The jurisdiction of justices in issuing and trying attachments, is special and limited, and the law conferring jurisdiction must be strictly pursued.
    When slaves have been levied on by virtue of executions, issued on judgments void for want of jurisdiction in the court rendering them, a court of equity by injunction will enjoin the sale, and declare the proceedings void.
    Where property was indefinitely loaned, and possession held by the loanee for five years, after which time the property was taken back, and in eight or nine months was again loaned, under which last loan possession was retained for four years : held, that the creditors of the loanee, who were such at the termination of the first loan, w^re entitled to have their debts satisfied out of the property ; but those whose debts were contracted during the second loan, were not.
    This was a bill filed by complainants Walker and others, to perpetually enjoin the defendantsYrom selling a slave named Ephraim, levied on by virtue of judgments obtained against William Walker, junior.
    The facts so far as they are necessary to be stated, are as follows: In 1817, William Walker, senior, loaned indefinitely to his son William Walker, junior, (a man much addicted to gambling and other habits of dissipation,) the slave in question; he remained in his possession until the fall of 1823, when in consequence of the creditors of William Walker, junior, intending to levy upon him, he run off, and was taken into possession by William Walker, senior, who retained him in possession about nine or twelve months. He then again loaned him to his son William, in whose possession he remained about four years, when Walker, junior, having committed a homicide, fled the country. • The boy was then levied on by virtue of two executions issued on judgments obtained against Walker, by confession, before he left the country. The debts upon which these judgments were founded, were contracted in 1824. He was also levied on by virtue of executions issued upon judgments obtained against Walker, by attachment, before magistrates. All of the debts for which the attachments were obtained, were contracted subsequent to the period of time when William Walker regained the possession of the boy, in the fall of 1823, except two. One of these was for thirty-five dollars, due to Samuel Anderson; the other for ten dollars, due to P. Anderson. All the debts for which the attachments were obtained, except the one above mentioned of ten dollars, exceeded the amount of twenty dollars, but were under one hundred dollars.'— The attachments and the proceedings under them, are all exhibited and set forth in the answers of the defendants. William Walker, previous to his death, executed a deed of gift of the boy to the children of his son William, which deed was found among his valuable papers after his death. The court below dismissed the bill, from which decree the complainants appealed to this court.
    
      G. S. Yerger, for the complainants.
    It is clearly proved, the slave Ephraim was only loaned, and to make him the property of William Walker, junior, (so far as his creditors are interested) under the provisions of the act of 1801, ch. 25, sec. 4, he must have five years continued and uninterrupted possession. 5 Munf. Rep. 101, 306-7. 4 Munf. Rep. 313.
    If Wm. Walker, junior, had the negro five years in possession previous to the period of time when William, sen. regained the possession, (in 1823,) then.the slave would be considered the property of the son so far only as his > then creditors were concerned. As between the loanor and loanee, the property remained unchanged. The loanor might pay off the existing debts, and retain his negro; and if he again loaned him, but he was not continued in possession for five years under the second loan, creditors who became such during the existence of the second loan, have surely no right to levy upon the slave as the property of the loanee. The act only applies to existing creditors; they are supposed to have trusted to the long continued possession. No intentional fraud can exist in the case. And it was not the intention of the legislature to let in creditors whose debts arise subsequent to the termination of the loan; if so, a loan for five years, although the loanor may have paid up all existing debts to get his property released, and although he may have taken possession, still the property in his hands would be subject, time after time, year after year, to be pursued for debts contracted by the loanee, at any period of time short of the act of limitations.- A power, almost absolute in its character over the property, by this construction will be given to the loanee; for he may at any time contract a debt with a view to charge the property. It would to all intents and purposes be his; he could convey it (not it is true by a common or ordinary conveyance,) to any man he saw proper. All that is necessary for him to vest a perfect title in a third person, is, to contract a debt, confess judgment upon it, and the sheriff's sale will vest the property.
    A construction so dangerous and pernicious in its consequences, so destructive to the rights of the humane and charitable, (for these are the persons mostly to be affected by it,) surely cannot be the correct one.
    The circumstance of the property being reloaned, can make no difference. If it cannot be levied on and sold by a subsequent creditor, in the hands of the original loanor, it cannot in the hands of his bailee. The subse-eluent creditors, in fact, acquire no right until there has , . n „ been a possession under the second loan for five years.
    If this construction of the act is right, the property is not liable to satisfy any of the judgments obtained, ex* cept Anderson’s debt of thirty-five dollars, and Paulding Anderson’s of ten dollars, as all the others were contracted during the period of the second loan. It will clearly exclude the two judgments confessed by Walker before he left the country, upon debts contracted in 1824.
    But, secondly, I contend that all the judgments, except those confessed, and the judgment upon Paulding Anderson’s attachment for ten dollars, are void; they conferred no right or power to sell this property (were it even subject to the^debts on which they were rendered,) for want of jurisdiction in the magistrate rendering them.
    Judgments upon attachments, without service of process or notice, must strictly pursue the requisites of the law, or they are mere nullities. 5 Haywood’s Rep. 297. Cooke’s Rep. 365. 5 Wheaton’s Rep. 116. 4 Wheaton’s Rep'. 77. 6Wheaton, 119. Hodge’s lessee vs. Deade-rick’s executors, decided in this court in 1828. 
      
       Jones vs. Earthman, decided in this court in 1830. 
    
    These attachments were all' issued by a magistrate, returnable before himself or some other magistrate. A magistrate has no power or authority to issue an attachment returnable before himself, when the amount of debt exceeds twenty dollars.
    By the act of 1794, ch. 1,' sec. 19 and 20, a magistrate has jurisdiction to issue an attachment against the estate of an absconding debtor, which attachment, says the act, shall be returned to the court where the suit is cognizable, and shall be deemed a leading process in the action. By the 55th section, he has power to issue an attachment returnable to the county court, whenever that court has cognizance or jurisdiction of the matter. By the 56th section of the act, “any one justice of the peace may issue an original attachment against the estate of any absconding or absent debtor, in cases where by this act he has jurisdiction, and the proceedings thereon shall be in a summary way, in the same manner as on a warrant, and the defendant may replevy the goods attached, and may appeal from the judgment of the justice.”
    By the 19th, 20th and 55th sections of this act, a magistrate has the power of issuing attachments returnable in all cases either to the superior or county court, or such court as has jurisdiction of the demand; and by the 56th section, he may make the attachment returnable before himself, in all cases where by the said act he has jurisdiction. It is therefore evident, under the provisions of this act, he has no jurisdiction to make it return, able and triable before himself, unless he has jurisdiction by the act to try the demand. Where he has not jurisdiction to try it upon a warrant, he must make the attachment returnable to either the county or superior court. The enquiry is then narrowed down to this: To what amount is jurisdiction given to a magistrate by this act? The fifty-second section of the act declares his jurisdiction, “that all debts and demands of twenty dollars and under, where the balance is due on any specialty, note or agreement for money or specific articles, or for goods, wares and merchandize sold and delivered, are hereby declared to be cognizable and determinable by any one justice of the peace,” &c.
    It is very clear by this act, where the amount or debt sworn to exceeds twenty dollars, that a magistrate has no jurisdiction to make the attachment returnable before himself, and try it; if he does, his'judgment is void.
    There is no act passed since this one, extending the jurisdiction of a magistrate in cases of attachment. It is true, his jurisdiction is enlarged by the act of 1799, ch. 1, to fifty dollars; but this jurisdiction is only to be exercised when process has been executed upon the defendant personally; it contemplates the warrant as the leading process, and an appearance and defence by the defendant, which is evident from the fact, that provision is made for staying the execution by the defendant. This act still leaves the act of 1794 in full operation as to attachments.
    This view of the act of 1794, and the jurisdiction of justices of the peace in rendering judgments upon attachments, is in conformity with the decision of the supreme court of the United States, in Walker vs. Turner, (9 Wheaton’s Rep. 547-8-9,) to which case and the reasoning contained in it, I refer the court for a clear and lucid exposition of the act.
    3. The act of 1794, sec. 24, requires the attachment to be under the hand and seal of the justice; most of these attachments are not, and consequently they are void.— In some of them the debt is not sworn to, nor arel they returnable to any particular court.
    4. The deed of gift is good, and vests the property in the children, who are complainants. 1 John. Ch. Rep. 329,240. Its non-registration can only be taken advantage of by the creditors of William Walker, senior, and they do not complain. Turner vs. Pierce, 5 Cranch, 154.
    
      Rucks, for the defendants.
    The property remained with the borrower more than five years, and the creditors may sell it under the act of 1801, ch. 25, sec. 2. We have no reported case settling the construction of the second and third sections of this act.
    The 2d section provides, that where a man shall lend his property, and permit the borrower to retain possession for five years, it shall be taken to be the property of the borrower, so far as creditors and purchasers are concerned, unless the reservation to the lender is by will or deed, , , , J proven and recorded.
    The third section has these general words, that this act shall not extend to any person lending his own property without an intention of fraud.
    This provision for the benefit of the lender, is intended to protect him against the borrower, and to enable him to pursue his property, as between them, at any distance of time, that is, where the transaction is fair.
    It was inserted from over caution, lest the generality of the provisions for creditors and purchasers might be construed to defeat the right of the lender where they were not involved; and this construction comports with the object of the legislature throughout the whole act.
    Any other construction would be inconsistent with the policy and object of the legislature; and would make the saving of the third section repugnant'to the second, and therefore void. 1 Coke’s Rep. 47. 1 Blac. Com. 89. 6 Dane’s Ab. 588, sec. 15.
    If the negro remained with the son so long as to be liable to his creditors, their rights are not to be affected by the lender taking him home for a few months and then returning him again, or settling him upon the wife and children. In this view he is looked upon as the property of the son, and the settlement as if made by him upon his own wife and children; and it falls within the rules governing post nuptial settlements, where the party is indebted at the time. In Reade vs. Livingston, (3 John. Ch. Rep. 493-4-5-6-7-8-9, 500-1-2,) the Chancellor reviews and examines the cases on this head; from which it clearly appears, that if the party is indebted at the time of the settlement, it is void as to precedent and subsequent creditors.
    But it is insisted that the facts cannot even raise this question for complainants.
    1. He did not take the negro home; the boy ranaway . from the officer, was’ merely concealed a few months, until the matter was adjusted.
    2. He was not séttled upon the wife and her children; the deed was never delivered, nor proved nor registered; and is therefore void as to creditors.
    3. All these defendants will be regarded as creditors at the time the negro ran off; for when they prayed an account to he taken as to the time when their debts accrued, it was opposed byjcomplainants.
    The question above referred to, usually arises upon the bill of the creditors praying to be paid their debts out of the property so settled. This is a bill to enjoin credi tors who are proceeding at law.
    The court cannot entertain this bill in behalf of the wife and children; they are volunteers, and have no right; nor in behalf of Walker’s administrator, for his intestate has sur elyl waived and forfeited all right, even if it was at first a loan.
    As to the objection taken to the attachments, it is answered, they are not impeached in the bill. A court of equity cannot impeach a judgment at law for any irregularity, (for then it would he substituted for a court of errors,) but only for fraud. 3 John. Ch. Rep. 275. 4 John. Ch. Rep. 85. 6 John. Ch. Rep. 235.
    Property sent by a father to his child, is regarded as a gift, unless the contrary be proved. 1 Hay. Rep. 2, 97. 2 Hay. Rep. 72,154.
    Wm. Walker, junior, was not present when his father sent off the negro, and used the expressions that he would send him to work for the family; therefore he did not receive him as a loan, and might have pleaded the statute of limitations of three years, if sued by his father.
    Yerger, in reply. It was not contended by me, that a court of equity can impeach a judgment at law for mere irregularities, or error in the proceedings. The judgment where it is merely erroneous, must stand until ¾ is reversed by an appellate court. But where a judgment is void for want of jurisdiction, it is then a mere nul-fity; it isas if it never existed. The right of property cannot be changed by a sale made under such a judgment, ór an execution founded upon it. The court before whom it is brought for examination, must necessarily decide whether the court rendering it had jurisdiction. Rossvs.Henly, 4 Cranch’s Rep. 269. Hodge’s lessee vs. Deaderick’s executors, before cited. Moren vs. Kille-brew, decided by this court at Reynoldsburg in 1830. 
    
    The defendants, in order to avail themselves of the act of 1801, ch. 25, must acquire a lien upon the property by judgment and sale, otherwise they have no right to it, even as against the debtor.
    The principle recognized by the case of Reade vs. Livingston, (3 John. Ch. Rep. 493,) and the cases therein cited, that a voluntary conveyance by a man indebted to insolvency at the time, is void against existing or subsequent creditors, is not denied.
    These cases proceed upon the supposition, that the conveyance was made with a view to a future indebtedness. Actual fraud is inferred from the circumstances. This class of cases are governed by the 13th Elizabeth, and the first part of the 2d section of the act of 1801, ch. 25. The difference between that case and this is obvious. In that, the party in whom the property is vested, is declared to never have parted with it, in regard to his creditors, on account of the intentional fraud. In this, the creditors of the original owner do not complain, and no property is passed or vested in the loanee, as to his creditors, unless the time prescribed by the statute has operated upon the possession. The loanee never had the absolute property, nor could he have, unless he had five years possession, by which the property of theoriginal owner is divested, for the benefit of the creditors of the loanee. It is there. fore conceived that the act can only apply to existing creditors; that the owner of the slave has a right to pay off existing demands and take him back; and that creditors subsequent to the termination of the loan, have no right to complain.
   Peck, J.

delivered the opinion of the court.

It is insisted that the regularity of the judgment against the younger Walker cannot in this indirect manner be enquired into. / We admit the principle, that if the question was, whether the judgments in the attachments were erroneous, this court would not examine into them; butitis contended they are void for the want of jurisdiction in the tribunal that rendered them. ⅝ If the judgments be void, it may be important to enquire into that fact; because if it should so turn out that the property had by the acts of the elder Walker, been placed in such a condition that it would be subject to the judgment creditors of the younger Walker, then the fact of “judgment creditor” or not, would depend upon the question, whether or no these were void judgments. Against such judgments, possession of the property in the fiduciary character of administrator, would be sufficiently opposing to retain possession and defeat a sale.

In this view it may be important to ascertain the amount for which judgment may be given by a Justice of the Peace on an attachment.

The law of attachments in this State has always been considered as standing to itself. The practice under it has ever been taken with strictness; even jeofails seem in some measure to be excluded, for the forms are given in our act of 1794, and advantage expressly allowed if the act has been departed from. Courts therefore have not indulged in latitude of construction to sustain proceedings by attachment, because the proceedings are ex parte in their character, and are liable to abuse, ^ Stewartvs. Roberts, at Jackson 1830.

The act of 1794, ch. 1, sec. 20 to 25, inclusive, give the writ and the proceedings thereon, making the same returnable to court. The 56th section changes the forum before which the attachment may be returned, but confines it expressly to cases where a single Justice of the Peace has jurisdiction “by this act,” of 1794.

That subsequent laws extending the jurisdiction of a Justice, did not intend to take the attachment along with them, will be best seen by contrasting the proceedings. Where the jurisdiction of the Justice is to be exercised under the warrant process, there is personal service provided for the defendant: he may be held to bail for appearance,and summons for witnesses allowed; there is a trial, the words of the act being “may hear and determine;” stay of execution is given; and finally, the writ of execution against the goods or body of the defendant. See 1 Hay. and Cobbs’ Rev. Laws, 202, 203.

Recurring to the acts concerning attachments, it is impossible to say they are included in the acts extending jurisdiction, unless it be done by implication; and it isa rule that extension of jurisdiction, not according to the course of the common law, must be given by express provision, not by implication.

Other objections might be urged against these attachments and the judgments founded thereon. One of them at the suit of P. Anderson, is for the sum of $90 61; the form given in the act is not pursued; it is not made returnable either to court, or before a justice, and it is not under seal. The justice has given judgment against Walker for the sum of $90 61, without showing on what evidence the demand is founded, or that he is proceeding on the attachment.

None of these attachments are undér seal of the justice, nor is there any oath in one case made by the ere-ditor, without which the attachment cannot issue. But it would be endless to go through them all pointing out their various objections. It is sufficient to say, that the process of attachment before a justice being a special and limited jurisdiction, ought to have been strictly pursued. In the amount demanded the justices have exceeded their jurisdiction; have rendered judgments which for the causes shown are void. On these the process of execution has issued, and been levied on the property mentioned in the bill. Can this court entertain the case to restrain the plaintiffs by injunction, and in that form remove the cloud from over the property? We are of opinion it can, and ought at the suit of these complainants, to restrain the inferior jurisdiction; because we are of opinion from the evidence, the property was a loan to the son; and though in the first instance the negro remained with him for the space of five years, ahd thereby became liable to creditors, who were such at the expiration of the term' of five years, yet before these defendants became such, except one of them, the property was revested in the complainant, who held the same as his own. As against his son, he could retain the property; neither time nor limitation operated for him, being a mere bailee.

When the father became possessed of the property the second time, and then parted with it, it was a new lending, and five years not having elapsed since such last loan, these creditors, even had they valid judgments, could not seize and sell this property. The decree must be reversed and the injunction made perpetual..

Decree reversed.'  