Thompson v. O'Hanlen , 6 Watts 492 ( 1837 )

The opinion of the Court was delivered by

Sergeant, J.

In order to sustain the claim of the plaintiff below, it must appear that the proceedings before the magistrate were a dead letter, and the sale thereon an absolute nullity; and this, according to the authorities referred to in Tarbox v. Hays, ante 398, would be the case, if the magistrate had no jurisdiction over the subject matter. But if he had jurisdiction in the case, and was acting judicially, he may have proceeded irregularly or decided erroneously on the merits; yet even were his proceedings set aside, the purchaser’s title remains unaffected. It is alleged that he mistook in deciding that a stray taken up on the public road, after having, on prior days, broken into the inclosure, comes within the meaning of the law. If so, it was a mistake in the exercise of a jurisdiction committed to him by the acts of assembly, not the assumption of a jurisdiction not given by law. Then did he act judicially in granting the warrant? I conceive that he did, and that it was for the purpose of having his investigation that the warrant is required to be issued by a judicial magistrate, and that the sale is not authorized to be made by the party. As such judicial officer, to whom the jurisdiction is entrusted, he is, before issuing his warrant, bound to take evidence, by the examination of the complainant on oath, or by other testimony, and to satisfy himself whether or not the case falls within the meaning of the act. He is not blindly to issue a warrant on the mere request of the party, and thus, perhaps, unfoundedly sacrifice the property of another. The sale, then, being made under a warrant issued upon a judicial proceeding, in a matter over which the magistrate had jurisdiction, even if his decision were voidable, and were actually reversed or set aside, the title would pass to the purchaser. There is no allegation of want of notice, which the act directs to be by advertisement, in case the owner is unknown. For defect of such advertisement the purchaser’s title may be divested by the express provisions of the act of assembly; but it embraces no other case.

Judgment reversed, and a venire facias de novo awarded.