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retention of the debt, gives rise only to an inference that the latter has been paid. The distinction is of critical importance in the present case, in view of its probable retrial, because of its bearing upon the burden of proof and the duty of producing testimony. It is proper therefore to point out that the fundamental distinction between a presumption and an inference does not arise from any consideration as to the greater persuasive quality of the former, but solely from a rule of law by force of which in the case of a presumption a given evidential fact is invested with certain consequences touching the further production of proof.

For the term "presumption" denotes that a force is accorded by law to a given evidential fact whereby the duty of producing further testimony is affected. A presumption therefore is an inference to which definite legal consequences are attached. An inference, however persuasive, that does not affect the duty of producing testimony, is not a presumption. Thus the production of a canceled mortgage casts upon him who would assert that it was not extinguished the duty of producing testimony, and hence raises a presumption; but no such burden being cast upon him who asserts merely that the bond has not been paid, such cancellation in his case, while giving rise to an inference, raises no presumption. Bearing this distinction in mind it is quite sufficient for present purposes to say that the production of the canceled mortgage in the present case was competent evidence upon the question whether or not the bond had been paid. This being so there was upon this question evidence both pro and con, and in such case it is error for the trial court to direct a verdict.

From this conclusion it results that the judgment brought up by this writ of error should be reversed and a venire de novo awarded.

For affirmance-None.


Attorney-General v, Sooy Oyster Co.

78 N.J.L.



Argued June 29, 1909–Decided January 6, 1910.

On error to the Supreme Court.

For the plaintiff in error, Clarence L. Cole, William C. French and Howard L. Miller.

For the defendant in error, George A. Bourgeois.

GARRISON, J. (affirming). An action of ejectment tried in the court below resulted in the direction of a verdict for the defendant.

The single question in the case is raised on the refusal of the court to receive the oral testimony offered by the plaintiff to impeach the validity of the defendant's riparian grant for the lands in dispute, the purpose of the plaintiff being to show by such testimony that such land was in point of fact natural oyster beds within the meaning of the statute of 1888. Pamph. L., p. 140.

If this testimony was properly rejected it is not contended that the direction of a verdict was otherwise erroneous.

The bill of exceptions shows that the land was covered by tidal waters which made a prima facie case for the plaintiff, to meet which the defendant introduced in evidence a grant of said lands made by the riparian commissioners on November 25th, 1903, to E. T. and W. T. Sooy under the great seal of the state pursuant to an act of the legislature approved March 21st, 1871. ' It was admitted that the defendant had a regular chain of title under this grant. At this stage of the trial the plaintiff offered to prove, in rebuttal, by witnesses, who knew the characteristics of the land in dispute, that such lands had on them at the time of the making of said grant natural oyster beds within the meaning of the amendment to the Riparian act of 1888, which reads as follows:

49 Vroom.

Attorney-General v. Sooy Oyster Co.

“That no grant or lease of lands under tidewater whereon there are natural oyster beds shall hereafter be made by the riparian commissioners of this state, except for the purpose of building wharfs, bulkheads or piers.”

Objection to the introduction of this testimony being made by the defendant, the court ruled that the grant could not be attacked by such proof in an action of ejectment, and, no other testimony being offered, directed a verdict for the defendant.

The exception allowed the plaintiff to each of these rulings presents the same question which, for convenience, may be divided as follows: First, whether or not the proffered proof was a collateral attack upon the riparian grant? Second, whether the validity of such grant could be thus impeached in an action of ejectment? and third, whether the fact that the plaintiff was the attorney-general acting in his official capacity made any difference?

1. That the testimony offered by the plaintiff was a collateral attack upon the defendant's riparian grant is too clear to justify extended discussion. The plaintiff by his action of ejectment sought to obtain a judgment awarding possession of the premises; when his course to this end was barred by the introduction of the defendant's riparian grant the plaintiff sought to get rid of such grant in such action by impeaching its validity by oral testimony as to a matter of fact not suggested on the face of the grant. This was of the very essence of collateral attack.

2. The more debatable question is whether the proffered testimony tended to show that the grant was dehors the jurisdiction conferred upon the riparian commissioners, for, if it was, the invalidity of the grant arising from such unwarranted assumption of jurisdiction could be set up anywhere by anyone who was injured by it.

Counsel have therefore correctly apprehended that the question on which their controversy turns is one of jurisdiction, but counsel for the plaintiff in error, in contending, as he does, that the rejected testimony would have shown that the riparian commissioners acted outside of their jurisdiction,

Attorney-General v. Sooy Oyster Co.

78 N. J. L.

loses sight, as it seems to me, of the distinction between jurisdiction in its comprehensive sense and the adequate authority to make a particular grant which is loosely called the jurisdiction to make such grant. This distinction between jurisdiction over a subject-matter generally and the possession of the adequate authority to make a particular disposition respecting it goes to the very heart of the present controversy, for it is the absence of the former alone that exposes such particular act to collateral attack, transgressions of the latter being reviewable only by a direct proceeding.

The distinction between these two conceptions or sorts of jurisdiction is pointed out with great clearness by Mr. Justice Woodhull in his opinion in Ritter v. Kunkle, 10 V room 259, construing that section of our Small Cause act, which provides that where the justice has jurisdiction no judgment shall be removed by certiorari. The opinion points out that in that section jurisdiction is used in the sense of the adequate authority to render the particular judgment that was rendered, but that, in the first section of the act, jurisdiction is used in its comprehensive sense as defining the class of cases cognizable by justices of the peace.

This same distinction was much more elaborately stated by Mr. Justice Brown delivering the opinion for the Supreme Court of the United States in the case of Noble v. Union River Logging Railroad Co., 117 U. S. 165.

"It is true,” he says, “that in every proceeding of a judicial nature there are one or more facts which are strictly jurisdictional, the existence of which is necessary to the validity of the proceedings and without which the act of the court is a mere nullity,

and its invalidity may be shown in a collateral proceeding.

“There is, however,” he continues, "another class of facts which are termed quasi-jurisdictional, which are necessary to be alleged and proved in order to set the machinery of the law in motion, but which, when properly alleged and established to the satisfaction of the court, cannot be attacked collaterally.”

Whatever of difficulty there is in making clear this distinc

49 Vroom.

Attorney-General v. Sooy Oyster Co.

tion is greatly increased, if, indeed, it is not actually created, by the necessity of constantly repeating the definition of each sort of jurisdiction as mention is made of it. In the interest, therefore, both of clarity and of brevity, I shall in this opinion substitute for such cumbersome paraphrases the terms generic jurisdiction and specific jurisdiction, intending to indicate by the former the existence of those essential facts in the absence of which jurisdiction ought not originally to have been assumed, and by the latter those subsidiary conditions in the presence of which, or rather in the light of which, the authority adequate to the lawful performance of some specific act is rendered questionable.

Using these terms we are able briefly to state the rule: that the lack of generic jurisdiction is available in collateral proceedings, but that the lack of specific jurisdiction is of avail only in some form of direct attack.

It is evident that in a large number of cases the vital question must be whether a given evidential fact affects generic jurisdiction or whether it appertains only to that sort of jurisdiction that Mr. Justice Brown calls quasi and that we have agreed to call specific. At all events that is the precise point in controversy in the present case, for if the fact that the lands under tidewater were also natural oyster beds affected the generic jurisdiction of the riparian commissioners, proof of such fact ought to have been received in the action of ejectment, whereas if such fact, if proved, went only to the specific jurisdiction of the commissioners to make the particular grant, such proof was properly rejected.

It is quite aside from this legal proposition to say, however truly, that the riparian commissioners were without authority to grant land on which there were natural oyster beds, for that is only to say that they lacked specific jurisdiction to make the grant, whereas, in order to justify the introduction of the testimony that was rejected at the trial, such proof must have tended to show that the commissioners were without generic jurisdiction in the premises. It is not a question of the lack of authority to make the grant, but of how such lack of authority may be taken advantage of, i. e., whether

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