TALIAFERRO vs. LANE, 23 Ala. 369

LIGON, J. The first question arising out of the errors assigned in tho record before us, relates to the action of the court below in allowing the attachment in the case of Lane v. Menifee, administrator of Hickman Lewis, dec’d, to be read to the jury.

It was on the levy made under this process that the claim of the plaintiff in error was interposed; and it is here contended that the attachment, being issued against the estate of a person who was a resident of this State at tho time of his death, and whose administrator is appointed by the courts of this - State, and amenable to them on his bond, is issued without authority of law, and is consequently void. This attachment appears to have been issued by a justice of the peace, on the oath of the plaintiff, “ that John T. Menifee, administrator of Hickman Lewis, deceased, is justly indebted to George W.

Lane, in the sum of five hundred dollars, as administrator of Hickman Lewis, deceased, and that the said John T. Menifee is about to remove the property of said Hickman Lewis out of the State, and thereby the plaintiff will have to lose the debt, or have to sue for it in another State.” The proceeding by attachment is striptly statutory, and the writ can only be issued in such cases as are clearly authorized by the law creating and allowing it.

The courts are not permitted, in such cases, to extend the provisions of the law by construction, so as to make them include cases and persons which are not clearly within their meaning. If, upon an examination of the condition of tho parties, all the rights and remedies secured to suitors, under the law authorizing the writ, do not or cannot attaeli to them, it would seem to be evident that they are not included in the act, and, consequently, the officers who are allowed to issue the writ in proper cases, would be without authority to issue it in those not named.

Wo have no statute expressly authorizing the issue of attachments against the estates of deceased persons, except in case of the death of a debtor residing out of the State, having property here, and the creditor is a resident of the State. — (Clay’s Dig. 58 § 14.) Our general attachment law gives no express authority so to proceed against domestic administrators op executors, nor can we see any good reason why it should be allowed.

The domestic administrator, before he enters upon the discharge of the duties of his office, is compelled to give bond, with sufficient security, in double the amount of the estate which comes to his hands as such, conditioned for the faithful discharge of the duties of his office.

If he waste the estate of his intestate, or fail to apply it to the payment of the debts, the creditor has an ample remedy upon his bond; and this is a sufficient protection, without allowing' him to interfere with the due course of administration by suing out an attachment, and thus depriving the administrator of the assets to be used by him in the manner required by law. Again ; if such course is tolerated, it would tend, in many instances, to defeat the operation of other statutes in relation to the estates of deceased persons.

If an estate is insolvent, the law does not prefer ono creditor over another, but provides that the funds arising from the assets in the hands of the administrator, shall be brought into court to be divided pro rata among the creditors. By this statute, the administrator íd chief is allowed a longer period to ascertain the true condition of the estate of his intestate, than the creditor is debarred from the privilege of suing him on his claim.

In such case, if the creditor were allowed to attach the goods of the intestate in his hands, what is to hinder him from suing out an attachment, and causing it to be levied on property sufficient to satisfy his demand, before the report of insolvency is made, thus obtaining a specific lien on such property, which cannot be affected by the subsequent report of insolvency, and thereby acquiring an advantage over other creditors, whose demands are as meritorious as his own 1 Another difficulty to such a construction of the attachment laws, arises out of those laws themselves. The thirty-second

section (Clay’s Dig. 61) provides, “ that whenever any original attachment shall have been wrongfully or vexatiously sued out, the defendant therein may, at any time, commence suit against the plaintiff suing out the same, and recover any damages which he may have sustained, or to which he may be entitled on account thereof, whether the suit by attachment be ended or not.” To whom, it may be asked, would this right to sue belong, in cases like the present 7 Certainly not to the intestate, who is the only debtor of the plaintiff in attachment, and to- whom no right of action could accrue for a wrong done after his death; and assuredly not to tho administrator, for he has sustained no individual injury or damage by the attachment having been sued out.

It results that, in such case, this clause of the attachment law would become wholly inoperative ; and we can scarcely suppose, that the legislature intended to provide an extraordinary and

summary remedy for creditors, for the abuse of which it gives an action against them in favor of the party injured, and yet allow it to be used incases in which tho redress for the abuse cannot be enforced against them. This court, however, has, in effect, already decided that domestic administrators cannot bo proceeded against by attachment. On repeated occasions it has been held, that where a statute creates a new and

summary remedy against persons standing in a particular relation to each other, such remedy will be allowed only as against those specially described in the statute ; and that such proceedings can only be sustained, where the record shows every fact necessary to support the jurisdiction of the court. Thus, in tho case of Logan v. Barclay, 3 Ala. R. 361, the proceeding was commenced, under the statute, against a constable, for failing to make the money on an execution which came into his hands, and he died pending the suit. This court held, that it could not be revived against his administrator, because the law authorizing such

summary remedies against the constable himself did not, in terms, extend it to his executors and administrators'. So, in the ease of Murphy’s Adm’r v. Br. Bank at Mobile, 5 A. R. 421 and 465, which was a

summary proceeding under the statute which authorizes tho Banks to obtain judgment on motion against their debtors, it was held, that the remedy did not lie against the executor or administrator of such debtor, because he was not expressly named in the statute. So, also, in the case of Dumes v. McClosky, 5 A.

R. 239, which was a proceeding under the act of 1834, in relation to the collection of rents in tho-city of Mobile, which allows the landlord to levy his rent by warrant of distress against his tenant, this court ruled, that such proceeding could not he maintained against the administrator of a tenant who died during his term, leaving rent in arrear.

That statute enacts, “that whenever any landlord, his agent or attorney, shall make complaint on oath, to any justice of the peace, in the city of Mobile, that any person is indebted to him, for the rent of any tenement within the corporate limits of the city, and shall enter into bond and security in four times the amount of the rent alleged to be due, conditioned to pay the defendant all costs and damages for the wrongful suing out of the warrant hereinafter mentioned, it shall be lawful for the justice of the peace to issue his warrant, returnable before him not less than four, nor more than ton days from the time che warrant shall be issued, directed to any constable of the city, requiring him to sicze and take into his possession any goods and chattels which may be found in the tenement for which the rent shall bo due,” &c.

In construing this statute, the court says, after having noted other objections to the judgment :— “ But there is a more formidable objection than this to this proceeding, which is, that it will not lio against the representative of the tenant, but must be prosecuted against him individually. This is a

summary remedy, and, according to all our decisions upon this class of cases, cannot be extended by construction beyond its terms. To permit it to lie against the personal representative, after the decease of the tenant, vrould be attended with mischievous consequences, which it is not necessary to enumerate, as the action is not given after the death of the tenant.” The analogy between the provisions of this statute in respect to tenants in Mobile, and that of our attachment laws in respect to debtors as to whom the process of attachment may issue, is noted by this court, in the ease of North v.

Eslava, 12 Ala. 240, in which, after pronouncing the proceeding as one in rem, the object of which is to give the plaintiff a lien on the goods of the tenant, the court says: “ Wo do not perceive any reason why suits commenced under this statute should differ from those brought under the general attachment law.” There is, in fact, no difference as to the lien obtained by the proceeding, nor in the

summary character of the remedy allowed, and there.is certainly no sensible reason why the one should bo more extended by construction than the other, as to the party against whom it may issue. In the case of Loomis v. Allen, 7 Ala. 706, it was held, that “our statute authorizing attachments in favor of a resident citizen, against the executor or administrator of a non-resident debtor, can only be levied on the property of the deceased within this State, which has not come into the possession of the personal representative, so as to be assets in his hands.” And in Hemingway v.

Moore & Crenshaw, 11 Ala. 645, in which a foreign creditor sought, by process oí attachment, to charge the property of a foreign debtor, which was found in this State, with the payment of his debt, (the administrators of said decedent being also non-residents,) the court held, that these facts appearing on the face of the proceedings, the attachment was rightly quashed on motion.

The reasons given are, that the terms of our act authorizing attachments against foreign executors and administrators, limit the remedy to resident creditors, and that the act of 1824, (Clay’s Dig. 57 § 9,) giving non-resident creditors the benefit of our attachment laws against non-resident debtors, was not intended to give them the benefit of this particular law. And toe court further says, that if the property, even in case of non-resident executors, had ever come to their possession, it would not be subject to attachment at the suit of resident creditors.

If, in the case of non-resident executors, an attachment will not lie after they have reduced the property sought to be charged by the attachment into possession, it is clear that the attachment cannot be uphold, when issued against a resident executor or administrator, who, it is shown by the attachment itself, has the possession of the property at the time of its issue; and such is the case under consideration. 2. Is such attachment void, or voidable only 7 If the latter, then it can be attacked only in a direct proceeding. If the former, it may be attached collaterally.

In this State, justices of the peace have no civil jurisdiction, except such as is conferred on them by statute. When they pretend to act in matters over which the statute gives them no authority, all such acts are coram non judice, and void.

They cannot be regarded as errors or irregularities, for these terms imply departures from the rule of proceeding, or mistakes of law in the progress of the case, in a court having rightful jurisdiction of the subject matter of controversy; and when they are found to exist, they can only be corrected by appeal, or writ of error, or some other direct proceeding in the case in which they occur.

Our attachment law does not, by its terms, authorize a justice of the peace to issue a writ of attachment against a domestic executor or administrator, and such process, issued by him, is merely void, and its levy can operate no lien in favor of the party suing it out, or- justify the levy made under it. It follows, from what lias been said, that the attachment in favor of Lane v. Menifee, administrator of Lewis, is void, and should not have-been permitted to be read to the jury, for any purpose, in the court below. 3.

It was also error to allow the judgment in the attachment suit to be read in evidence to the jury, 'when it was objected to by the claimant. It was wholly irrelevant to the issue, and could only tend to embarrass the case, and, perhaps, mislead the jury.

The validity or invalidity of the claim of tlio plaintiff in attachment, against the estate of Lewis, could not arise on the trial of the right of property, as it formed no part of the issue, nor had the claimant of the property the right to controvert it; consequently, the judgment could prove no fact involved in the trial, and should not have been read, when it was objected to,, 4. The charge refused by the court should have been given. We have seen that the attachment, under which the levy was made, is void as a process, and consequently its levy created no lien in favor of the plaintiff in that suit.

Wo have already held, that to justify the trial of the right of property, under our statute, the property must be levied on by a valid process in the hands of the proper officer. Braley v. Clark, 22 Ala. 361. The judgment of the court below must be reversed ; and as the points decided are conclusive of the case, both in-this court and the court below, it is unnecessary to remand it.