
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Cator v. Cockfield.
    The supplementary judiciary act of 1799 has not transferred to the Constitutional Court, the decision, in the first instance, of questions arising upon demurrer. The jurisdiction of that court is appellate only, and no question can be properly submitted to it, until there has been a decision upon it in the court below.
    .’Where a demurrer is overruled, the judgment is, regularly, that the party answer over instanter, and no rule to plead is necessary -; but upon causo shewn, the court may, in its discretion, grant an order for time to plead,
    it is a good plea in abatement, that the writ requires the defendant to appear, and answer, at a place, uncertain in itself, or different from that directed by law. Contra, Waties, J., and dissentiente, Bbevaed, J., who thought the objection ought to be made by motion at the appearance ■term, and not allowed afterwards.
    The defendant, to an action of trover, brought in the district •court of Marion, pleaded in abatement, that the writ required the defendant-to appearand answer before the court of common pleas at Marion; whereas,’by the act of 1799, by which that district is established, and the place for holding the courts therein appointed, as also the mode prescribed for the return of process, &e., it was necessary that the writ should have specified the house of Thomas ■Godbolt, junior, as the place where the court was to be holden, and where the defendant was to appear, &c. The plaintiff demurred, and the presiding judge, Waties, J., gave judgment in the district court for the plaintiff, and ordered the defendant to answer .over instanter. The defendant now moved in this court, to reverse the decision in the district court, on the ground, as well that the same was contrary to law, as that the district court was incompetent to determine questions on demurrer, and give judgment thereon, but that all such questions should be referred immediately, and in the first instance, to this court.
    a Faust, ¡56,7.
    The defendant’s counsel argued, 1. That the supplementary judicial act of 1799 intends that demurrers shall be submitted to this ¡court for determination in the first instance, and not to the district court, where the issue shall be made up; and that some judges had formerly so decided, and refused to adjudge cases on demurrer in the ¡district courts, 2. That admitting the power of the district court to determine issues of law on demurrer in the first instance, and to .award a respondents ouster, yet that such court- hps no power to or» der the party quod respondeat ouster instanter; but he ought to hav§> the usual time to plead allowed, as in other eases after the declara? fi°n is filed. ,3. That the p]a,ce in the writ, at which the de» fendant is required to appear, and answer, is neither agreeable to law, nor sufficiently certain in itself. That according to the act of assembly, the writ should have been returnable to, and have required the defendants appearance at, the house of Thomas Godbolt, junior, in the district of Marion ; and “ Marion” is the name of the district, and not the name of any certain place in the district, and, therefore, no particular place is designated, &e.; and the writ, for uncertainty, ought to be abated,
    
      
      g^ “ 1 ""
    
      The plaintiff’s counsel answered, 1. That no point of law can be properly submitted to the decision of this court, until there has been a decision first had thereon in the court where the point arises. That this was the intention of the constitution in establishing this court; and that it is reasonable and convenient, that the law should be so. 2. That where a dilatory plea is overruled, or judgment given against it on demurrer, the party pleading it ought to answer over immediately, and is not entitled tq any tin)e to plead, as in other cases where he has not wilfully endeavored to delay the plain, tiff. 3. Lastly, that the uncertainty in the writ objected to, oughtnot to be allowed a sufficient cause for quashing the. writ after the defendant has appeared, and taken the benefit of a pontinuance. Thai the purpose of the writ is to call the defendant into court. That when he is brought into, or appears in court, he ought immediately to take such exceptions as he may have, to the irregularity by which he has been called into court; and that after entering a regular appeitrauce, without taking any such exception, he ought not to be allowed, afterwards, by pleading tq the declaration, to take advantage of any such irregularity, or of any defect in the process, as a mistake in the teste, return, &c.; but that such appearance ought to be considered as having cured such defect, or as being a voluntary waiver of every such advantage by the defendant.
    Tí e defendant’s counsel in reply. Where a defendant objects tq Che jurisdiction of the court, he ought not to appear by attorney, hut in persou : and, therefore, if he enters an appearance, he admits the jurisdiction of the court, and shall not be allowed after, ward'., to rru-ke any objection thereto, by way of plea to the juris. ;hot;o¡i. But in all other cases, appearance does not cure the errors it, v.r.s original. The defendant ought not to be supposed, by his t:s,.a ranee, to have waived his objections tq the defects of this process, but rather to have saved all exception thereto, and appeared specially. 1 Str. 154. 1 Salk. 59. 2 Str. 1072.
   Per curiam.

As to the first point, there is no diversity of opinion .among the ’judges. The .intention .of the .constitution in requiring ■the judges to meet at the conclusion of the circuits, to hear motions to be submitted to them, was, to establish a tribunal of appeals ; a court of the last resort, for the decision of law questions, and in. trícate points of practice, arising in the district courts. It is a wise ,and useful institution, calculated to .produce .certainty and unifor. .mity in the administration of justice. Jt tends to satisfy the parties .against whom decisions are made in the circuit courts, as well as their counsel, who are not bound to rest satisfied with such deci. sions, but may except thereto, and demand [he opinions of the other judges, on the question of law, or practice, on which the decision is made ; and it is also a great relief to the judges them selves, who are often under a necessity of delivering- opinions on .difficult questions, in the district courts, on the spur of the occasion, witnout having sufficient time or opportunity to deliberate and .digest such opinions, and, therefore, may often wish to have those .opinions examined, in order that they may have the sanction of a full bench, if found to be right, or if found to bo erroneous, overruled and exploded. And it is evident from the nature and design ¡of the institution, that no question which has arisen out of any .cause, depending’in a district court, and which, if this court did not exist, would be proper for the cognizance of such district .court, can be taken notice of here, unless there has been a decision .upon it in .the district court; because the question must come here by way of appeal from the determination. in the district court. Questions brought here on motions for new trials, “may seem to be exceptions to this rule, but they are not so in fact; for although no ^notion is ever made for a new trial in the district court, yet the .question of law, if any, that may have been decided against the party, or the law that has been laid down by the court, in the case, is that decision which is excepted to, and appealed from. Where new trials are applied for on other grounds, the conduct of the jury is most commonly implicated; but as the knowledge of the facts and circumstances, which furnish the grounds on which motions for new trials are generally granted, on account of any mistake or misconduct of the jury, are generally obtained late in the term, and as causes of this sort are commonly mixed with other causes, as misdirection of the court, &c., in which the opinion of the judge may be questioned, it cottld answer no useful purpose to require that motions for new trials should be first made in the district court, before they can be brought here.

On sec°n<I and third points, there was some difference of opinion among the judges. A majority of them resolved, that on ¿¡eraurrers decided in the district courts, where the decision is, that the defendant respondeat ouster, he shall answer over instantly, and that he shall not be allowed time to plead without good cause be .shewn, to induce the court to grant further time to plead, as a special favor ; and that there is no necessity to serve him with any rule to plead. And they all concurred in opinion, that the placo where the defendant was required to appear and answer, by the writ, was not expressed in the writ, with such certainty as the .law requires. Brevard, J., said, he had always been of opinion, ■that dilatory pleas, which are predicated on some mistake in the form of the leading process, as a wrong teste, &c., or on some ex.trinsic error, which may easily be exposed, and proved at the appearance eourt, as misnomer, &c., ought not to be pleaded, or al.lowed, by way of plea, to the declaration ; as they may be as well taken advantage of, by motion in court, at the first court after the return of the writ, without putting the plaintiff to the unnecessary expense of making up his record, and the delay which must consequently happen before the error is detected. That in this State, the plaintiff never files his declaration till after the appearance court, and the defendant is not compellable to plead within a month after the declaration is filed ; whereas, in England, the declaration .is filed very soon after the return of the writ, and, therefore, no greater delay need be incurred by pleading to the declaration, than by moving the objection to the writ before declaration filed. That ■there ought to be no distinction between pleas to the jurisdiction and other dilatory picas; but that in all cases where the matter which will furnish a good plea in abatement of the writ, lies in the knowledge of the defendant himself at the time he is called on to ■enter his appearance, as misnomer, coverture, mil tiel person in re-■rum natura, &c., such matter ought to be stated in the court on a .motion to quash the writ at the appearance court, in the same man.ner as where the objection is to the form or regularity of the writ itself, where the defect is apparent in the writ. That even in England, where the writ is defective on the face of it, the court may, ex officio, abate it. Com. Dig- Abatement L. 3. And, therefore, he was of opinion, in this case, that the plea ought not to have been pleaded, and that on that ground, the court of the district, where su©h plea was put in, ought to have dismissed it, and ordered, the defendant, instantly, to answer over'. He agreed, however, that in all cases where a plea in abatement is adjudged against the defendant, he should be ordered to answer over forthwith, and is not entitled to notice by rule, aud time to plead : and that the matter of this plea was sufficient to abate the writ, if it had been objected to in time, not only for lack of certainty in not specifying any‘ particular place, but for not pursuing the words of the act, by which the courts for Marion district, are directed to be holden at the house of Thomas Godbolt, junior, in the said district, until the court house for the said district, shall be erected.

Wilds and Branding, for plaintiff. Falconer, for defendant.

Per curiam. Let the decision of the district court be reversed ; and let judgment be entered up for the defendant, on the demurrer, his plea in abatement being sustained, aud the demurrer overruled.

The opinions of the judges were as follows :

Grimkb, J.

The defendant was ordered to appear before the court of common pleas, at Marion ; where the law requires the said court to be holden, at the house of Thomas Godbolt, junior. There being no village or town called Marion, but only the district, I am of opinion that the words' wore not sufficiently certain, and, therefore, that the demurrer should bo overruled, and the plea sustained.

Trbzevant, J.

It is not pretended that any particular place in Marion district, is generally known by the name of Marion. I am, therefore, of opinion the plea in abatement should be sustained, and the decision of the district court, overruling the demurrer, reversed.

Note. — If a respondeos ouster be awarded, notie'e to the defendant is unnecessary, for he shall be supposed in court, Lawrence v. Martin, 1 Salk. 8.  