Dorr Appellant agt. Birge and Wells Respondents. MULLETT, Justice.-The 45th section of the Code of 1848, expressly repealed the 2d section of the Revised Statutes concerning the jurisdiction of justices of the peace, and the statute of 1840 amending the same. These were the only statutes empowering a justice to take judgment by confession for any greater amount than was embraced in his general jurisdiction. At the time the judgment in question was confessed the justice had no jurisdiction to enter judgment for that amount. The judgment was therefore a nullity and can form nor ba to the plaintiffs' right to recover upon the notes. It is true the Code of 1849 restores to a justice the jurisdiction which had been taken away from him by the Code of 1848; but this does not help the case; the amend ment of 1849 can not have a restroactive effect. The last section of the Code of 1849 can not give it that effect. All there is of that it happened to be a part of the Code of 1848 which was not amended. The plaintiffs must therefore have judgment for the amount claimed in the complaint with costs. SUPREME COURT. DORR Appellant agt. BIRGE and WELLS Respondents. In respect to causes originating in a Justice's Court, the Supreme Court has merely an appellate jurisdiction. It can only review and correct the decisions of the County Court actually made, after a hearing of both parties. It has no power to review a judgment rendered in the County Court by default. Albany General Term, May 1850. Before Justices WATSON, PARKER and WRIGHT. Dorr sued Birge & Wells before a justice of the peace, in the town of Lansingburgh, for taking away a wagon, and recovered a judgment for $73-17 damages and costs, The defendants appealed to the county court of Rensselaer county, where the judgment was reversed with costs. The plaintiff then appealed to this court. It appeared by the papers returned on appeal to this court, that the judgment of reversal in the county court, was recovered by default. J. K. PORTER, for Appellant. R. M. & M. I. TOWNSEND, for Respondents Dorr Appellant agt. Birge and Wells Respondents. By the Court, PARKER, J.-We are met on the threshold of the examination of this case, by the objection that the judgment of the county court, which the appellant now seeks to reverse, was rendered by default; and it is contended that in such case, the judgment ought to be affirmed or the appeal dismissed. If this objection is well taken it will be unnecessary to examine the merits of the controversy as it existed before the justice's court. In Cheetham vs. Tillotson (5 John. 430), the late court for the correction of errors reversed, on error, a judgment rendered in the Supreme Court by default. The objection does not appear to have been taken in that case that a writ of error would not lie to review a judgment recovered by default. The only question, discussed by counsel and decided by the court, was whether the declaration set forth a sufficient cause of action? But since the determination of that case there has been a series of decisions, holding that neither an appeal nor a writ of error would be entertained by that court except for the purpose of reviewing an actual determination of the court below. In Sands vs. Hildreth (12 John. R., 493), the cause was regularly noticed for hearing in the Court of Chancery. The defendants did not appear, and a decree was taken by default, from which the defendants appealed to the Court for the correction of errors. But the court unanimously held that an appeal would not lie from a judgment voluntarily suffered by default, and ordered the appeal to be dismissed with costs. In Gelston vs. Hoyt (13 John. 561), the defendant's counsel had declined arguing a demurrer before the Supreme Court, and judgment was of course given for the plaintiff. It was held by the court for the correction of errors that the defendant could not on bringing a writ of error to that court, object to the propriety of a judgment which had thus passed against him by default. The question was then fully examined by the chancellor, and the general rule laid down that no point could be raised in a court of appellate jurisdiction, which was not argued in the court below. In Henry vs. Cuyler (17 John. R., 469), judgment had been Dorr Appellant agt. Birge and Wells Respondents. taken in the Supreme Court, on demurrer, and the writ of error was quashed on the ground that the judgment sought to be reversed was recovered by default. In Colden vs. Knickerbocker (2 Cowen R. 31), it was held that the writ of error to the Supreme Court would not lie upon a judgment by default, and if brought, that the proper course was neither to affirm or reverse, but to dismiss the writ of error. The same doctrine has been reiterated in Campbell vs. Stokes (2 Wend. R. 146), Houghton vs. Starr (4 id. 179), Wood vs. Young (5 id. 620), Kane vs. Whittick (8 id. 219). It is said this rule was peculiar to the late court for the correction of errors, and owed its existence to a provision in the state constitution of 1777, which, in instituting the court (Art. 32), declared that" if a cause shall be brought up by writ of error on a question of law on a judgment in the Supreme Court, the judges of the Court shall assign the reasons of such their judgment," and made a similar provision in case of an appeal from the Court of Chancery. It was argued that neither the judges nor the chancellor could assign reasons for their judgments, where such judgments had passed silently by default; and that it could not, therefore have been intended by the constitution to review judgments voluntarily suffered by the party's default. But it will be found on examining the cases above cited, and particularly that of Gelston vs. Hoyt, that the constitutional provision above referred to formed but one of four reasons assigned by the court, why a judgment obtained by default ought not to be reviewed in the appellate court. The general rule is laid down, that no point can be raised in an appellate court, which was not argued in the court below. Such is also the rule in the English house of lords (Dean vs. Abel, Dicken's R. 287; 2 Sch. & Laf. 712). This court is now the court of last resort, witn regard to causes originating in a justice's court. No appeal will lie from the determination of this court in such an action to the Court of Appeals (Code, §11). The jurisdiction of this court is only appellate. It can only review the decisions of the County Court, Dorr Appellant agt. Birge and Wells Respondents. which in such causes, is also an appellate tribunal. If a party to the appeal before the County Court may suffer a default there, and then appeal to this court, it would be equivalent to appealing in the first instance directly from the judgment of the justice of the peace to this court. It is the judgment of the County Court that is to be reviewed in this court, and a party ought not to be subjected to the expense of an appeal to this court, until he has had the deliberate consideration and judgment of the County Court. This was plainly contemplated by the statute. The Code provides (§344) that no appeal shall be allowed from a judgment of a county court in a case arising in a justice's court, unless the party desiring to appeal shall, within thirty days after notice of the judgment, present to a judge of the Supreme Court the return of the justice, or a copy thereof, with the decision of the county court, and obtain from such judge a certificate that he has examined the case, and in his opinion an appeal to the Supreme Court should be allowed." The county court is expected to make a decision upon the questions presented by the return of the justice. It can hardly be said to do this where judgment is reversed by default. In such case the return is not presented to or read by the county judge. The party appearing is entitled to the judgment moved for, on proof of due service of notice of motion (Rule 28). The rules of this court are applicable to all the county courts. (Code, § 470) The question presented on appeal to this court, in this case, is not whether the justice of the peace rendered an erroneous judgment. That was the question before the County Court, and the plaintiff failing to appear before that court, pursuant to notice, the defendants were entitled to a judgment of reversal. If that judgment was irregularly entered, or if for any reason the party was unable to appear in time, that court only can afford relief on motion. I am satisfied this court is vested with no authority in this case except to review and correct the decisions of the county court actually made after a hearing of both parties. The appeal must therefore be dismissed with costs. 5 How. 327-CRITICISED, 18 Barb. 332. DISTINGUISHED, 7 Daly 402. FOLLOWED, 8 How. 189. OVERRULED, 16 Barb. 309; 11 How. 106; 23 N. Y. 264. NEW-YORK PRACTICE REPORTS. Roberts agt. Randel. SUPERIOR COURT. ROBERTS agt. RANDEL. 327 An action "to recover personal property" can not be maintained where the defendant has not in fact er in law the possession or control of the property claimed. Consequently an order for arrest under the 3d sub. of § 179 can not be granted in such a case (where the sheriff returns he is unable to obtain the property, &c.) (This is adverse to the case of Van Neste agt. Conover, ante 148.) The "claim and delivery of personal property" under the Code is a substitute for replevin as heretofore existed under the Revised Statutes; which was a possessory action against personal property, or for damages for its detention; and in its application to the disposal of property limited, to a removal of it made to avoid the service of the writ. (In the cases of Cary vs. Hotaling and Olmsted vs. Hotaling, 1 Hill, 311, 317, this doctrine is stated that replevin can be maintained in all cases where the party can bring trespass de bonis asportatis. HELD, that this was merely an assumption by the court, and its application to such a case as the present, unfounded.) This was a case where the plaintiff delivered a Texas bond to the defendant (as broker) to be sold at a specified amount. The plaintiff claimed that the defendant had disposed of it under the amount, and thereby unjustly converted and detained it. This action was for the bond itself. January 1851. Before OAKLEY, Ch. Justice, and SANDFORD and PAINE, Justices; with the concurrence of the other three Justices, DUER, MASON and CAMPBELL. This is an appeal from an order made at chambers, discharging an order for the arrest of the defendant made under the third subdivision of section 179 of the Code of procedure. The defendant had been arrested under that order, and imprisoned for default of bail. The action was brought, in form, for the recovery of the possession of personal property. The plaintiff, claiming a delivery of the property, placed in the hands of the sheriff an affidavit and a requisition for its delivery pursuant to sections 207 and 208 of the Code, with the proper security. The sheriff certified that the property had been concealed, removed or disposed of, so that he could not find or take it. Thereupon the justice at chambers made the order for the defendant's arrest. The plaintiff's affidavits for the delivery and for the arrest, showed that the action. was brought for the conversion of a bond of the state of Texas, |