#### Whitley v. Black, McKinnie, and Burn.

From Wayne.

W rits of error are necessary only when the Court has power to act, but mistakes th.e law.

But when a Court has not by law ah authority to act, Ur. acts are void-, and may be set aside on motion.

The Plaintiff had obtained a judgment against the Defendants Black and McKinnie, iu the County Court of Wayne, at its session in August, 1821, whereupon a writ oi'ji.fa. issued, returnable in November, 1821. On this writ, the Plaintiff directed that no proceedings should be had. and by his direction a writ of ca. su. was issued, returnable in February, 1822. On the .191 Si of December, 1821, the Defendants executed to the PhJniiffabond, pursuant to the provisions of the ic act for the relief of honest debtors.” At the sessions of Wayne County Court, held in February, 1822, the Befaidants P«iacL and McKinnie failing to appear, according to the condition of t/ie bond, judgment for the penalty, was, on motion, rendered against the Deiendauis, pursuant to the act, and execution issued 1 hereon. The 64 act for the relief of honest debtors,” had been repealed by the Login. iature in December, 1821, and was not in farce at the, time judgment was rendered ngainsi the- Defendants on the bond. At its session in Fdsrit&i-y, the County Court of Wayne,, on motion, ordered that the execution against the Defendants should he set aside, anti the judgment of which it was a consequence, should be vacated. The Superior Court of Wayne, on appeal, coitíTmcd the order of the County Court, whereupon the Plaintiff appealed to this Court.

Gaston for the Plaintiff,

contended, that if the judgment rendered hv the Court below were erroneous, jt *180could be regularly set aside only upon writ of error j (Bacon, Tide “Error,” Jl.) that as the act of 1777 makes the Superior Courts the tribunals for correcting errors 0p c0U51ty Courts, reversing or vacating its own erroneous judgment, was an act exceeding the authority of the County Court ,* that the Court liad, notwithstanding the repeal of the act for the relief of honest debtors, a jurisdiction ‘founded on its general authority to decide civil controversies, and that the proceedings were regular, inasmuch as they violated no rule of the Court, and Defendants had notice of the application which would be made for judgment by the very tenor of the bond which they had signed.

Hawks, for Defendants,

insisted that the Court, when it rendered the judgment on the bond had no jurisdiction ; Rex v. London Justices, {Burr. 1456,) Governor v. Howard, (1 'Mnrphey’s Rep. 465,) that its act therefore, was not merely voidable, but absolutely void and irregular ; that placed upon record as it was, it would seem to be regular, if the Court did not interfere by virtue of the controlling power which it had over its own records, and order the entry to be made vacating or reversing. But even if the judgment were erroneous only and not irregular, it might be vacated on motion, without resorting to a writ of error — (vide Tidd’s Prac. 440, 445,) cases aris-. ing under the annuity act. The law abominates circuity and expense, and on that principle, motions similar to the present have been often allowed — (2 Wils. S-~-Andrew’s Rep. 20 — -2 Hap. Rep. 73.)

Taylor, Chief-Justice.

A proceeding is authorised by the act of' 1320, and an authority confided to the County Courts, altogether different from the usual Common Law process in civil cases. When the first judgment was mitered upon the bond, the act of 1820 liad been repealed and made void, and from thenceforward *181all proceedings had tinder it', wore coram non jndice; they were not merely reversible for error, but absolutelj nidi i for it is clear that no proceedings cats be taken u>t-dcr a repealed si a tute, though commenced before the repeal, without a special provision for that purpose. Yfhe.u an inferior jurisdiction in con lined to oonae particular tilings, and the suit there is for so me thing else of which they have no jurisdiction, all is void, ami ran by no admission be made good — (1 Salk. 20a.) * One of the cases cited is very strong, for there, the party had given in a schedule of Ids effects, and was prepared to avail himself of an insolvent law then in force, hut the Coart on an unjustifiable pretence, postponed the application to a subsequent session, before which the law was repealed; and it was properly held that no step could be taken by the quarter sessions after the repeal. Upon the distinction between a void and a voidable judgment., í think the order to vacate was properly made in this, case, and that í he judgment should be affirmed.

Henderson, Judge.

X»y the act of 1821, the act for the relief of honest debtors was repealed, and all power of proceeding under that law ceased. The judgment in the present rase was entered up under an impression in She Court., that the proceedings pending at the time the Jaw was repealed were not affected by that repeal, and judgment was rendered according to the law as they understood it. That act authorised judgments to be rendered up into a summary way upon motion, against persons not brought into Court by process. Tho-'judgmcufc in the present case wan therefore not only a judgment contrary to, or in opposition to the law as to the liability of the Defendants, but in opposition to the rules of practice and procedure prescribed to the Court. For the law was repealed not only as to the liability of the Defendants, but also as to the summary mode, of proceeding $ for which folies* reason F think the judgment not erro - *182neons only but absolutely void, and liable to be vacated by any succeeding* Court. Writs of error are necessary only where the Court has power to act, but mistakes the jaw — i|lere fos. error of law only a superior tribunal cau rever.se the judgment. But where a Court has not by law an authority to act, its acts are void and may be set aside on motion. The propriety of considering a judgment void in cases of tins kind, viz. where the .Court affect to act in a summary manner without bringing the Defendant before them, when the law does not authorise that summary proceeding, is seen, by viewing this as a judgment rendered in one of our Superior Courts, whose judgments cannot be examined into for error in law, in any manner but by an appeal to this Court, and before the establishment of this and the late Supreme Court, in no manner at all. The consequence would be that a person might be ruined, as not having had an opportunity of being heard, and this Court not possessing the power of issuing a writ of error, and an appeal being attainable only by an application to the Court during the term at which the judgment was rendered.

Hall, Judge.

I entertain some doubts in this case, because the judgment sought to be vacated might be reversed by writ of error ; — however I am no' prepared to say that it ought not to be vacated as moved for, and as done in the Superior Court.