Shivers v. Wilson , 5 H. & J. 130 ( 1820 )

Johnson, J.

at this term, delivered the opinion of the court.' In this case it has been determined by Baltimore county court, that on the plea of non assumpsit by a garnishee, it was incumbent on the plaintiff, before he could recover, to produce evidence to the jury, that he was a citizen of this state, or of some other of the United States. No such proof was exhibited, and the garnishee sustained his defence.

On the part of the appellant it is contended, that, as the' court before whom the cause was depending had ‘a general, and not a limited' jurisdiction, over the matter in contest, no advantage could be taken of the plaintiff’s incapacity to sue, except by k plea in abatement.

No position in law is more clearly established, than that a defendant in a cause, before a court of general jurisdiction, must, if he wishes to avail himself of the disability of 'the plaintiff to sue¡ do'so by a plea in abatement; and no principle of law is moré evident, than that where the tribunal is of a limited jurisdiction, or the proceedings are particularly described by a statute made on the subject, that course of procedure, sp described, must, on the face of the record, appear to hpve been, if not literally, at least substantially complied with,' or the case must by the proceedings'disclose itself to be within the limited jurisdiciion. It follows, from the preceding principles, that the decision of the court below must be sustained, if it had but a limited jurisdiction, or if its course of proceeding was Of a circumscribed description,' unless, on the face of the record, the case shall appear to have been within the jurisdiction, or the course of proceeding directed by law, to have been substantially complied with.

On these principles rest the numerous decisions on the acts for marking and bounding lands, made by the late general court, and all the courts of the state of original jurisdiction, and which have been universally acquiesced in. In these cases, notwithstanding the statutes explicitly declare that unless the adjudication under them is called in question within a ‘prescribed period, it shall be final and conclusive,; yet, in evei-y 'instance, where attempts have been made to usé those proceedings on the trial in ejectments, where the land comprehended in the commissions has been the subject in contest, they have been rejected, (although no exceptiori'hád been taken to them within the limited time,) unless the whole proceedings appeared to have pursued the course prescribed by such statutes. The power of the county courts," under these acts, was universal; they, and they alone, were authorised to issue those commissions; they, and they only, had the authority to direct the adjudication of the commissioners to be’recorded; and when recorded, the act of assembly itself, after the expiration of the time mentioned, declared them final;' yet invariably have the courts determined them not to be final, but, on the contrary, of no effect whatever, finless they were on their face entirely regular. These decisions rest on the principle, that" where the course of procedure is described by the statute, the proceedings themselves must show their conformity with the act by which they are authorised, and that otlierwise advantage of non-conformity can, at any time, be taken. "' " ’

The act of 1795, ch. 56, under which the proceedings in this case are supposed'to be protected, gives, it is true," full and entire jurisdiction in all cases of attachments coming within the purview of the act, yet that entire jurisdiction is confinéd to such’ cases as the act embraces. If the act comprehends the case at bar, then no exception to the disability of the plaintiff was available, except by plea in abatement; if, on the contrary, that act extends not to the case, the plaintiff had no right to recover,, and the decision against him was correct. The act of assembIy needs only to be read to discover its limited operation. It gives not the right to every person to issue, or cause attachments to issue; its provisions confine the remedy to citizens of this state, or to some other of the United States, and the manner in which they are to proceed is, in detail, pointed out. The plaintiff', to succeed under that law, must come within its provisions; the plaintiff, to recover under that act, must follow its directions. The record before the court, in this case, in no part of it brings the plaintiff within that description of persons who had a right to issue, or cause the attachment to have been issued. The right to condemn the property in favour of such a plaintiff, is by no law vested in the court before whom the cause was tried, or in any other court.

If the question was now to be taken up, uninfluenced by any adjudication, it must be a forced construction that could bring a person, as described by these proceedings,, within its pale; that could extend relief to him, who at the trial of the cause refused, or failed to prove himself within the description of the law. But the matter is not for the first time before the court. The effect of such language, as the act- contains, has been ascertained by the decisions on the constitution of the United Stales. And although this court are not bound by those decisions, yet, having been pronounced by one of the most enlightened tribunals in America, it would be unbecoming in this court to declare them to have been erroneous; and if not erroneous (as we are of opinion they are not) it follows that the opinion of the court below, made in conformity with, the principle established by those decisions, was correct, and the judgment given ought to be affirmed.

JUDGMENT AFFIRMED.