Hoose vs. Sherrill and others, 16 Wend. 33

By the Court, Nelson, C. J. A justice has jurisdiction to issue a summons as the first process in the commencement of a suit before him, in all cases where the defendant is a freeholder or an inhabitant having a family within the county where the justice resides, 2 R. S. 227, § 13. Whether it was or was not the appropriate process in this particular case cannot affect this general jurisdiction.

If a summons be issued in a case in which it is not the appropriate process, the objection, to be available to the defendant in such process, must be taken before the justice, and if he errs in his decision, the remedy of the party is by certiorari; the proceeding will not be coram non judice. The general power will protect the magistrate and all officers concerned in the execution of the process from being treated as trespassers. The case of Rogers v. Mulliner, 6 Wendell, 597, is an authority for this principle: see also Savacool v. Boughton, 5 Wendell, 170.

The summons was personally served, and whether there was a sufficient number of days between its issuing and the day of its return, is not material as it regards the defence in this case. The defect, if one exist, would go only to the regularity of the process, and not to the jurisdiction of the justice ; it might be cause for reversal of the judgment, but does not render the process a nullity. The plea sets forth abundant facts to show jurisdiction of the subject matter ; it refers to the statute giving the penalty for which the plaintiffs declared, and also to the remedy thereby prescribed.

It also shows that the justice, had jurisdiction of the person of the plaintiff*. There must be judgment for the defendant, with leave to the plaintiff to amend. Mr. Justice Co wen concurred.