Leavitt v. DeLauny. terest. "With regard to contracts to replace stock at a future day," says Comyn, "it is clear that if the lender be not certain whether, by the stocks being replaced at the given day, he shall be a gainer or loser, any gain which he may obtain by the replacing will not taint the agreement with usury. But if, on the other hand, he has so made the agreement that he is secure from loss, and has a chance of gain, this, by taking away the contingency, deprives the transaction of legality." (Comyn on Usury, 114.) Again, the same writer says, "Usury can only attach to a loan of stock where the party transferring it receives, or is likely to receive, more than the legal rate, and cannot, by possibility, receive less." (Id. 105.) Suppose that, instead of exchange, the defendants had been dealers in flour, and the banking company, for the same purposes for which it borrowed the exchange, had borrowed of the defendants a thousand barrels of flour; that by the terms of the loan, the same number of barrels were to be returned, at the end of a year, and that the borrower should also pay upon the estimated value of the flour, interest, and one per cent under the name of commission. Assuming the transaction to be what upon its face it purported to be, who would pronounce it usurious? The lender, on the one hand, would take the risk of a depreciation in the price of flour, and the borrower, on the other, would take the risk of an advance. No one would pretend that usury could be predicated upon such a transaction. And yet, if I am right in assuming that exchange is, like merchandise, the sub*372] ject of *bargain and sale, and even the learned judge who has regarded the transactions in question as usurious, concedes that this is so, I cannot see how this case is distinguishable from that supposed. Indeed, I understand it to be a general principle, applicable even to loans of money, that where the lender assumes any risk or hazard, in respect to the money lent, the reservation of a higher rate of interest than that prescribed by law will not render the contract illegal. (Comyn on Usury, 21. See, also, Tate v. Wellings, 3 T. R. 531; Pike v. Ledwell, 5 Esp. 164; Maddock v. Rumball, 8 East, 304; Clark v. Giraud, 1 Mad. 511; Spencer v. Tilden, 5 Cow. 144; Cummings v. Williams, 4 Wend. 679.) The assistant vice chancellor thinks the illustrations from loans of cotton, sugar and other merchandise, to be returned in kind, with compensation, are not pertinent, "because," he says, all merchandise fluctuates in value, while here the thing to be returned was equivalent to the thing loaned." I confess I am unable to appreciate this distinction. Bills payable in Paris fluctuate in value in the same manner, and probably quite as much as cotton or sugar: and whether the one or the other is the subject of the loan, the thing to be returned may, or may not be equivalent in value to the thing loaned. It is true that exchange is made to represent funds at the place where it is payable, and that the money in Paris, represented by the bills loaned, is equivalent to the money in Paris. represented by the bills to be returned in payment of the loan. This may not be the case with cotton or sugar. But has this distinction any proper bearing upon the question in hand? Funds in Paris are not, in any practical or legal sense, money in New York. Such funds can no more be used as money in New York than can tea or coffee. Indeed, the latter articles approach nearer to a substitute for money. because they are more extensively in de mand. But each, before it can be made to represent money, requires the transforming operation of a sale. Upon a review of all the evidence in the case, I can see nothing which justifies even a suspicion that the contracts in question were devised, or designed, to cover usury. On the contrary, *every thing seems [373 fair and bona fide. The contracts were, each of them, bargains of hazard. That hazard was not very unequally divided between the parties. Neither, at the time of any single loan, could foresee with certainty to which of them it would prove most favor. able. Whether the banking company would pay more or less than legal interest for their accommodation no one could know. Whether the defendants were to obtain all, or but a part of the value of the bills loaned, in the bills they were to receive in repayment, was to depend upon a contingency yet in the future. In short, the most that can be pretended is, that the arrangement was such, that the defendants were likely. perhaps quite certain, to make a fair gain, but that there was also some chance that they might lose. Such a transaction involving such contingencies, unless merely colorable, cannot be usurious. Upon this ground, therefore, and without reference to the questions presented upon the pleadings, I am of opinion that the decree of the Supreme Court should be affirmed. Gardiner, J. The defendants furnished the association with their drafts, payable in Paris at sixty days, the amount of which, the latter promised to return in fifty-five days from date, in similar drafts (to be ap proved by the defendants), adding interest at seven per cent. This, in substance, was the agreement of the 16th of April, 1841. The previous contracts between the parties, in addition to the terms above stated, contained a provision for a commission of one and one-half and two per cent, to be paid to the defendants. The several agreements, in form were sales, or exchanges of the bills of the defendants, for other bills of a similar character, to be delivered by the association, within a stipulated period. There was no application or treaty for a loan of money. The defendants were regular dealers in exchange, and their answer in response to the bill alleges, that the application to them by the banking company was for the purchase of bills of exchange, and that the defendants, in pursuance thereof, agreed to sell and did self such bills accordingly. The answer in Barnes v. Harris. The defendant demurred on the ground that the justice had no jurisdiction to render the judgment; that it did not appear that any return of the summons issued by him was made, or that it was in fact ever returned, or that any court was held by the justice at the specified time and place, or that the defendant was a resident of Chenango county, or that the summons claimed or demanded less than $100, or that any time of day was therein specified, or that the defendant appeared. The Supreme Court held the declaration good, and overruled the demurrer. The defendant brought this appeal. *374] this respect, so far from being dis- | mons, more than six days before the return proved, is sustained by the written agree-day thereof, was personally served on said ment of the parties. The question then, | defendant by a constable of said county, arising upon the contracts prior to that of which said damages and costs were adthe 16th of April, in the form most favor- judged to the said plaintiff by the said jusable to the complainants, is simply, whether tice then and there, etc. upon a sale of credit, made in good faith, the vendor can reserve or secure to himself more than seven per cent without rendering the agreement usurious. This question was substantially decided in the affirmative, in the case of The Dry Dock Bank v. American Life Ins. & Trust Co. (3 Comst. 344), and by previous adjudications in this State, to which reference is there made. It is not denied that a sale of exchange, in form, may be adopted as a cloak for an usurious loan. But the party impeaching an agreement upon this ground must, by evidence, remove the covering from the transaction, and exhibit it as a loan of money. He makes no progress in this work when he stops with proving that he proposed to purchase bills, and subsequently put his proposition into the form of a written agreement. This is the whole effect, as I think, of the complainant's evidence, viewed in connection with the answer of the defendants. It is unnecessary, therefore, to consider the other questions presented by the defense, as the decree of the Supreme Court must be affirmed for the reasons suggested. And, thereupon, for the reasons stated in the opinion of Gardiner, J., and without passing upon other questions, the decree of the Supreme Court was affirmed. BARNES v. HARRIS. Action of debt upon judgment rendered by justice of the peace.—Jurisdiction, how pleaded. In pleading a judgment rendered by a justice of the peace, it is sufficient, in order to show jurisdiction, to allege that the judgment was obtained in an action commenced by summons duly issued by the justice and personally served on the defendant by a constable of the county, more than six days before the return day thereof.(a) Affirming Barnes v. Harris, 3 Barb. 603. *375] * ACTION of by a justice of the peace. of debt upon a judgment The declaration alleged that by the judgment of Harvey Hubbard, Esq., justice of the peace of Norwich, Chenango county, he had recovered against the defendant the sum of $100 damages and ninety cents costs, in an action of assumpsit, commenced by summons duly issued by the said justice on the 8th day of May, 1844, returnable at the office of said justice, in Norwich aforesaid, on the 17th day of May, 1844; which said sum (a) In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction: but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.— Code Civ. Proc., § 582. *S. Beardsley, for appellant. N. Hill, Jr., for respondent. [*376 Gardiner, J. The only objection to the declaration which is important to be considered is, that it does not state facts necessary to give the justice jurisdiction of the person of the defendant. It may be as sumed as a principle, to which it is believed there is no exception, that a court having authority to issue process acquires jurisdiction of the person of the defendant, prima facie, by a personal service of that process upon him in the manner required by law. The 11th section of 2 R. S. 226, 2d ed., provides, among other things, that suits in a Justice's Court may be instituted by process, which shall be a summons, warrant, or attachment. The form of the summons, the mode of service and return are prescribed in the 14th, 15th and 16th sections of the act. It is the ordinary process of the court. The warrant and attachment are extraordinary, and can only issue upon a special application (S$ 17, 26), and upon proof of circumstances showing the grounds of such application. (2 R. S. 160, 201, 203, §§ 19, 28, 17, 292, 301, 2d ed.) All that is necessary to authorize the issuing of a summons is the mere suggestion of the plain*defendant, falling within the 2d [*377 tiff that he has a demand against the section, defining the jurisdiction of the court. The justice is not at liberty to decline jurisdiction, except under the special circumstances mentioned in the 7th section: in all others, by necessary implication, he is obliged to take cognizance of the action." The plaintiff is not bound even to allege, much less to prove, that the defendant is a resident of the county, the statute neither authorizing or providing the means for obtaining the evidence. In a word, a request for process by or in behalf of a plaintiff for a cause of action within the 2d section, is equivalent in effect to a plaint levied, according to the old cases, which was in substance a statement of the demand and prayer of process. (1 Saund. by Wms. Barnes v. Harris. 87. 90, n. 1; Cowp. 10; 3 T. R. 185.) A plant | levied was all that was required, not only to obtain the writ, but all that was necessary to allege in declaring upon the judgment, to give jurisdiction of the person. (1 Saund. 92; Cowp., supra.) The request referred to, which under our statute is a substitute for the plaint, is substantially alleged by the averment, that the plaintiff commenced the suit before the justice in an action of assumpsit, upon contract, by summons duly issued, etc. The authority to issue a long summons, the ordinary process of the court, is as ample under such circumstances, as to issue a warrant or attachment upon a special application, and the proof required by law. In the latter cases, it has always been held that when the proof has been given the jurisdiction attaches, however the fact might be; and upon due service of the process issued, the defendant will be concluded by the judgment subsequently obtained, unless he appears and takes his objection. (10 Wend. 200, 360.) The summons, therefore, was lawfully issued by the magistrate. else. If a warrant or attachment is applied for, evidence tending to prove the fact of residence is sufficient to give jurisdiction. (10 Wend. 200, 360.) But in case of a summons, the fact itself is made jurisdictional without any means of ascertaining its existence. These are some of the inconveniences resulting from the doctrine contended for by the defendant; others will readily suggest themselves. They seem to have had some influence with our courts; for without adverting to Smith v. Mumford (9 Cow. 26), and Stiles v. Stewart (12 Wend. 473), the *point was distinctly presented and [*379 decided in Hoose v. Sherrill (16 Wend. 33). and in Bromley v. Smith (2 Hill, 518). And in Cornell v. Barnes (7 id. 37), the form of a declaration upon a judgment of this sort was indicated, and it was said that to give jurisdiction of the person, "the plaintiff inust aver either that the defendant appeared, or that process was sued out and duly served upon him." And the learned reporter, in a note reviewing the authorities. The declaration also alleges, that it was remarks, "that the plaintiff should begin by personally served upon the defendant alleging the issuing and service of the sumby a constable of the county, etc. This mons, etc., by which the suit was commeans, so far as regards the officer, a legal menced, and then pass by taliter processum service, which could only be made in the fuit to the rendition of the judgment." county. (S$ 14, 15.) The defendant, being This has been done in this case. And we found within the territorial limits of the think that enough has been alleged to show. court, must be held, prima facie, amena- | prima facie, a valid judgment. The judgble to its jurisdiction, by virtue of its ment must be affirmed. *378] *ordinary process. It is said that we can presume nothing in favor of the juris diction of an inferior court. Neither can we presume any thing against it. Now that the defendant was in the county when the process was served, is a fact admitted| by the demurrer. As nothing is to be intended, we are not at liberty to infer from that fact that he was a resident; nor can we presume that he had a residence elsewhere; and if neither presumption is indulged, the defendant would be found in the county without having a legal residence anywhere. This is no uncommon occurrence. But in that event he was properly sued by summons, as none are exempted from that process by statute, but those who "shall reside out of the county." (2 R. S., 2d ed., § 292.) Again, if the residence of the defendant must be averred, it must also be proved. It cannot be shown by the docket of the magistrate, for although it is the foundation on which the proceedings rest, as the defendant insists, no record of the fact is directed or authorized by the statute. (2 R. S., supra, § 243.) The preliminary proceedings to authorize the issue of extraordinary process, must be in writing and kept by the justice, as the revisers inform us, for his protection. (Reviser's Notes to § 5; 3 R. S. 681, 2d ed.; 2 id., § 250. But according to the view of the defendant, proof of all the proceedings, from the application of the plaintiff for a summons to the rendition of the judgment, unless the defendant appeared, would not be even presumptive evidence in favor of the magistrate or any one Harris, J., also delivered an opinion in favor of affirmance. Ruggles, Hurlbut, Harris, Pratt and Gray, JJ., concurred. Bronson, Ch. J. (dissenting.) The principles involved in this case are too important to allow them to be disregarded, without saying a word in their defense. It is an established rule in our law, that no court can give a valid judgment, unless it has jurisdiction of the subject-matter in controversy, and has acquired jurisdiction over the person of the defendant, in the mode prescribed by law. When a court acts without jurisdiction, either as to subject or person, its proceedings are not only erroneous, but absolutely void, and may be attacked in a collateral action, as well as by way of review. The rule extends alike to all courts and officers, from the highest to the lowest. If it were not so, there would be a power in the State above the laws which is a despotism. There is, however, this difference between superior and inferior courts: the jurisdiction of the former is presumed until the contrary appears; whereas the latter must show their jurisdiction; it will not be presumed. After the authority of an inferior court to act has been proved, liberal intendments may be made in favor of the regularity and justice of its proceed- [*380 ings; but such intendments are not made in relation to jurisdiction. This distinction between superior and inferior courts is well established; indeed, it is as old as our law. Barnes v. Harris. In pleading the judgments and proceedings of courts and officers of special and limited powers, jurisdiction must be shown; and it is not enough to aver in general terms that they had jurisdiction, but the facts on which jurisdiction depends must be stated. It will not do to say that a justice of the peace had jurisdictien, and gave judgment; but it must be shown how he acquired jurisdiction: to-wit, by voluntary appearance, or the issue and service of legal process. These points have not only been adjudicated in a great number of reported cases, but they have been acted upon in hundreds of others, which have not found their way into the books. They are rules of everyday application in the administration of justice; and although they have been either forgotten or disregarded in a few instances, the cases of the kind to be found in the books are not enough to make more than a ripple on the great current of authority. Several cases in point on the principles in question are mentioned in the dissenting opinion which was delivered in Hoose v. Sherrill (16 Wend. 36), and I will add now several other cases to the same effect, which have been adjudged in the courts of this State since that time. (Stewart v. Smith, 17 Wend. 517; Nicholl v. Mason, 21 id. 339; Bloom v. Burdick, 1 Hill, 130; Schneider v. Me Farland, 2 Comst. 459, S. P., Dowd v. Stall, 5 Hill, 186; Sackett v. Andross, id. 327; Harriott v. Van Cott, id. 285; Van Etten v. Hurst, 6 id. 311; Bowne v. Mellor, id. 496; Cornell v. Barnes, 7 id. 35; The People v. Koeber, id. 39; Ford v. Babcock, 1 Denio, 158; Whitney v. Shufelt, id. 592; Seymour v. Judd, 2 Comst. 464; Burckle v. Eckart, 3 Denio, 279; affirmed, 3 Comst. 132; Corwin v. Merritt, 3 Barb. 341; Staples v. Fairchild, 3 Comst. 41; Turner v. Roby, id. 193.) Other cases might be added, but I will not take the trouble to collect them. The points in question not only stand upon principles which cannot be safely abandoned, but they *381] are firmly established by *authority, if any thing can be regarded as settled by many well-considered precedents. Now what has the pleader done in this case by way of showing the facts on which the jurisdiction of the justice to render the judgment depended? He says that a summons was issued on the 8th, and made returnable on the 17th day of May; and was personally served on the defendant more than six days before the return day. This is very well if the defendant resided in the same county with the justice; but if the defendant resided in another county, he was only liable to be proceeded against by short summons or short attachment, running not more than four days (Stat. of 1831, p. 403, § 33); and the pleader has not told us where the defendant resided. There is a total defect of allegation as to one of the material facts on which the jurisdiction of the justice to give the judgment depended; and the declaration is not a whit better than it would be if every thing relating to jurisdiction had been omitted. If the defendant was a non-resident of the | justice's county, it is not only clear upon general principles that this long summons could give the justice no authority to act, but the Legislature has declared in express terms, that if a non-resident defendant shall be proceeded against otherwise than by short summons or short attachment, "the justice shall have no jurisdiction of the cause." ($ 33, supra.) We can no more presume that the defendant was a resident of the justice's county for the purpose of making the long summons good, than we could presume that he was a non-resident had a short summons been pleaded. It has been shown already that it is not a case for indulging in presumptions of any kind; but the facts which show jurisdiction must be alleged. If authorities are to be followed, or principles regarded, the pleading is bad. But it is said that if the proper process was not issued, the defendant should have appeared before the justice and made the objection; and having neglected to do so, the judgment is valid. This doctrine depends for its support on two or three cases to which allusion has already been made, Hoose v. Sherrill (16 Wend. 33), and Bromley v. Smith (2 Hill, 517), as standing in conflict with the strong_current [*382 of authority on the subject. Let us now see how much this new mode of getting jurisdiction is worth upon principle. A defendant may be called into a Justice's Court in five different ways: by warrant, long attachment, short attachment, long summons and short summons, according to the circumstances of each particular case. There is no authority to issue the different kinds of process indiscriminately, but only to issue one kind or another, as the facts of the particular case may warrant. And yet the argument we are considering comes to this: the justice may disregard the statute under which he acts and issue what kind of process he pleases; and he will get jurisdiction unless the defendant appears and objects that the law ought not to have been thus violated. It results from the doctrine, that though I am only liable by law to be sued by summons, my property may, nevertheless, be seized by attachment, or my body be arrested by warrant; and these illegal acts will give the justice jurisdiction to render a valid judgment against me. Or, if I am on a journey out of my own county, and only liable by law to be delayed four days at the most, to answer a short summons, yet I may be delayed twelve days to answer a long summons. And although the Legislature has expressly declared that in such a case "the justice shall have no jurisdiction" (§ 33, supra), yet the argument is, that I must stop in my journey, go before the justice and tell him he has no right to act; and if I omit to do so, he will, some how or other, get jurisdiction to give a valid judgment. The rule formerly was, that where there was no legal process, there must be a voluntary appearance to confer jurisdiction; but now we are told that a refusal to appear will answer the purpose. Such a doctrine has no principle whatever to stand upon; Barnes v. Harris. and I deny that it has any foundation in our law. A justice of the peace cannot give a valid judgment, until after the defendant has either appeared voluntarily, or been brought into court by legal process. Lawless power belongs to despots and the mob; and not to the officers of a free people. whether it can be safely departed from; I will now refer a little more fully to a few cases for the purpose of showing that the gen*383] eral rules which have been *mentioned have been carried out in practice, and that inferior courts can only acquire jurisdiction over the person of the defendant by pursuing the forms prescribed by law. If a justice of the peace issue an attachment without first taking the proof which the statute requires, the judgment which he renders will be void for want of jurisdiction, and he may be sued as a trespasser. (Vosburgh v. Welch, 11 Johns. 175; Adkins v. Brewer, 3 Cow. 206.) And if he issue a warrant without the proof required by law, he acts without jurisdiction. (Loder v. Phelps, 13 Wend. 46.) When a summons is the proper process, a warrant issued by the justice is irregular and void, and gives no jurisdiction over the person of the defendant. (Gold v. Bissell, 1 Wend. 210.) It is not enough that there be regular process of summons, and a return of personal service, but the return must follow the requirement of the statute, and show when the service was made, so that it may appear that the defendant has had full legal notice. "It is a regular return only that can give jurisdic-party who invokes the exercise of the juristion." (Stewart v. Smith, 17 Wend. 517;| Wheeler v. Lampman, 14 Johns. 481.) When a warrant issues, or process in the nature of a warrant, it is not enough that the defendant is summoned, and a regular return is made upon the warrant; the defendant must be actually brought into court, or the justice will have no jurisdiction, and the judgment which he renders will be void. (Colvin v. Luther, 9 Cow. 61; Bigelow v. Stearns, 19 Johns. 39.) In the last-mentioned case Chief Justice Spencer remarked: "It is no answer to say, that being summoned he might appear. It was the duty of the justice to cause him to be brought before him." The remark goes on the ground, that if the justice do not strictly pursue his authority in every particular, he will not gain jurisdiction of the person of the defendant. A striking exemplification of the principle will be found in the case of Reynolds v. Orvis (7 Cow. 269), where the justice issued a warrant for the examination of a pauper, who was brought into court, examined, and removed to another town by order of the justice and another magistrate who sat with him. But for the reason that the warrant was delivered to, and served by a constable of another town than that mentioned in the statute, though in *384] *the same county, it was held that the justice acquired no jurisdiction, and was liable in an action for false imprisonment. Woodworth, J., in delivering the opinion of the court, said: "When a rule is laid down for the government of inferior jurisdictions, we are not at liberty to inquire |