Bowie v. Jones ex rel. Linthicum , 1 Gill 208 ( 1843 )

Archer, J.,

delivered the opinion of this court.

. The court below decided that it was competent for the plaintiff to object to irregularities in the defendant’s discharge under the insolvent laws, and they instructed the jury, that if they find that the defendant obtained his personal discharge, that the trustee was appointed and gave bond, and the insolvent executed his deed to the trustee before the petition was filed, that then the said final discharge was irregular and void, and was no bar to the plaintiff’s right in the present action.

It'is said by this court in 2 Gill & John. 50, that the decision of a court of competent jurisdiction, when coming incidentally in question, or offered in evidence of title in any other court, is conclusive of the question decided, and cannot be impeached on the ground of informality in the proceedings, or error, or mistake of the court in the matter on which they have adjudicated, and the court in that case decided that the county court would not determine letters of administration to be void, although granted by the orphans court in a case where the law had conferred no authority on such court to grant letters.

It is supposed that the judgment of the county court does not come incidentally in question here. But in answer ’to this we have to say that it is pleaded and relied upon only as a protection against the claim of the plaintiffs. The case of Taylor and McNeil vs. Phelps, 1 G. & J. 503, will be found to be an answer to the objection. The only inquiry would therefore seem to be whether the jurisdiction of the county court attached; if it did, whatever irregularities may have been committed, could not be the subject of revision.

It is however supposed that the court in the exercise of its jurisdiction in relation to insolvents, is limited, and that the course of procedure is pointed out by the statutes, that therefore all the requirements of the various acts as preliminary to the final discharge, must appear to have been substantially complied with. It is true the jurisdiction of the court is limited, but in such case all that is necessary to be shewn is, that the case is within the limited jurisdiction, and the judgment would be just as obligatory and conclusive as if the judgment were one of a court of general jurisdiction.

However true may be the principle, that where the course of procedure is pointed out by the statute, the proceedings must show their conformity with the act by which they are authorised; yet, since the decision of the court in 5 H. & J. 189, the judgment of tribunals of this State, discharging insolvents, has been considered an exception to that rule. In the case adverted to the court say, “they do not wish it to be understood that discharges under the insolvent law's are liable to all the objections that are usually relied on against proceedings of persons limited by special authorities.”

The same doctrine would appear to prevail in the English courts. In Willis’ Rep. 199, to an action on the case for goods sold and delivered, the defendant pleaded his discharge under the act of 10 Geo. 2, by the general quarter sessions for the city of Bristol. To this plea there was a replication that the defendant had not surrendered himself to prison. The defendant demurred generally, and the court say, that if it had appeared that the sessions had a jurisdiction, it would have been sufficient to have said generally, that the sessions had discharged him, and that the court could not enquire into any facts necessary to be done by him, in order to obtain his discharge', of which the sessions were the only and the proper judges, and must be taken to have adjudged right, and they decide the plea to be defective, because it did not state what was neces* sary to give the court jurisdiction, to wit, that the defendant surrendered himself to prison. See also the case of Linwood vs. Hopkins, referred to by the counsel in the above case, where it being objected that the proper notice was not given in the Gazette. Lord Hardwick was of opinion that the sessions were the proper judges of this, and that it could not be enquired into upon.the trial. Under the act of 1805, ch. 110, the pre* sentation of a petition by a party in confinement, was alone necessary to give jurisdiction, and since the proof of confinement has been dispensed with by the act of 1830, ch. 130, the jurisdiction of the county court attaches, by the presentation of a petition, such as is prescribed by the acts in relation to insolvent debtors. This view of the subject renders the exam* ination of the various objections which have been urged against the regularity of the proceedings in this case, unnecessary.

Two objections however have been taken by the counsel for the appellee, one of which has been sustained by the court below, which it may be proper for this court to advert to, as they refer rather to the time and circumstances of the application, than to the proceedings themselves.

1. It is alleged that the proceedings are void, if the defendant obtained his personal discharge; the trustee was appointed and gave bond, and the insolvent executed his deed to the trustee before the petition was filed, and so the court decided below.

The proceedings all bear date the 13th of April, and they are filed on the 15th of same month. That the court, or a judge, possessed power to grant a personal discharge and to appoint a trustee and take a bond, is apparent from the act of 1805, ch. 110, sec. 2 and 3; 1808, ch. 71, sec. 1 and 3, and 1827, ch. 71. The filing of the petition cannot be necessary to the validity of these acts, because a judge, in the recess of the court, is expressly empowered to act when the petition is presented to him, conforming in its terms to the Act of Assembly. In such a case the law does not require, nor does it conform to practice in such cases to file the petition before the action of the judge thereon. A case must be undoubtedly depending before the action of the court or a judge can be had, but such a case is depending, either before the judge or the court, when the petition is presented. We therefore think the court erred in pronouncing the proceedings void on such an hypothesis.

The next objection which has been alleged to the proceedings and judgment in this case is, that a prior application of the appellant was depending at the time of the application, upon which the discharge now in controversy was granted. This point was not raised in the court below, or if it was, was not decided by the court, but as it may again arise in the case, we think proper to say, that the principles heretofore adverted to in this opinion, are decisive of this question. The court of Prince George’s county have proceeded to the final discharge of the appellant, which we are bound to respect, having seen that the jurisdiction of the court once attached by the presentation of the appellee’s petition.

The jury have found, by their verdict, that property by descent, devise, bequest, &c., has come to the defendant, and it is proper, under these circumstances, that the case should be remanded.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.