
    
      Benjamin Gildersleeve vs. Alexander Alexander.
    
    1. The Act of 1818, (7 Stat. 319) to enlarge the jurisdiction of the City Court of Charleston, which provides “that nothing contained in this Act shall be so construed as to extend to any inhabitant of this State, who may not be resident within the City of Charleston; and no person shall be construed to be a resident of the said City, unless he shall have resided in the said City three months prior to the commencement of the suit or prosecution, or shall have resided within the said City four months during the year preceding the commencement of the said suitor prosecution,” subjects to the jurisdiction of that Court persons who are resident, and have been for three months prior to the suit, and persons resident who may not have resided in the City three months prior to the suit, but who were residents four months in the year preceding.
    2. This construction gives effect to all the terms of the Act, and is subordinate to that part of it which provides that it shall not be “so construed as to extend to any inhabitant of this State who may not be resident within the City.”
    
      Tried before his Honor, the Recorder, in the City Court of Charleston, January Term, 1843.
    This was an action of assumpsit on note.
    The question which arose was, on a plea to the jurisdiction of the City Court.
    It was admitted that the defendant had lived for two or three years in the city of Charleston, and at the time that he made the note sued, and that he had removed and resided beyond the bounds of the city only eleven days before the suing out of the writ against him. It was insisted, that to give the court jurisdiction, as the defendant was admitted to be a citizen of the State, he must, at the time that the writ issued, be a resident within the city; and on this ground, the defendant pleaded to the jurisdiction of the court.
    His Honor overruled the plea, on the ground that the Act to enlarge the jurisdiction of the court, defines who shall be considered a resident. One who has resided in the city three months prior to the commencement of the suit, or who shall have resided within the city four months during the year immediately preceding the commencement of the suit; and it appeared to the court that the defendant came within the latter legislative definition of a resident, and was, therfore, rightfully subject to the jurisdiction of the court.
    The defendant appealed, on the ground, that at the commencement of the suit, the defendant was an inhabitant of the State, not residing within the city of Charleston, but having his domicile, bona fide, without the limits of the said city, and not subject, in the present case, to the jurisdiction of the City Court.
    
      Mr. Ashby, for the appellant.
    It is said to be laid down in one of the old reporters, Ven tris, 333, that the liberty of the subject is infringed by subjecting him to a jurisdiction to which he is not legally amenable, and the legislature is not to be presumed to have intended to subject an inhabitant of the State, not a resident of the city of Charleston, to the jurisdiction of the City Court, unless the words of the statute to that eifect are clear and explicit. The Act of 1818, Statutes at large, vol. 7, p. 319, to enlarge the jurisdiction of the City Court, provides, “that nothing contained in this Act shall be so construed as to extend to any inhabitant of this State, who may not be resident within the city of Charleston; and no person shall be construed to be a resident of the said city, unless he shall have resided in the said city three months prior to the commencement of the suit or prosecution, or shall have resided within the said city four months during the year preceding the commencement of the said suit or prosecution.”
    Now, I submit, that the Act requires actual residence at the time suit is brought, and that this residence shall have been of three months duration, except in the case where the defendant has lived in the city for four months in the year immediately preceding the suit, when he is subject to the jurisdiction of the city court, without the previous residence of three months: provided he is actually a resident of the city at the time the writ is sued out. This construction gives a meaning to all the words of the Act; that of his Honor, the Recorder, annuls that part of it which provides that it shall not be so construed as to extend to inhabitants of the State who are non-residents of the City. In cases, too, like that of the defendant, the jurisdiction of the court depends upon the accident of serving the defendant personally with the writ, in the city, for It is not pretended that the city sheriff could make the service effectual, by that other mode, known to our laws, of leaving a copy of the writ at the usual place of abode of the defendant, for this abode is without the limits, of the city, and the Act of 1801, (Stat. at Large, vol. 7, 302) organizing the city court, declares that no writ or process issuing out of the court, shall be of force for service or execution out of the limits of the city.
    I submit, too, that the other Acts of the legislature, relative to the city court, strengthen the defendant’s claim; for that of 1801, provides that no citizen of the State, who shall not have been in the habit of residing in the city four months in the year preceding the commencement of the suit, shall be liable to be sued in the court; (Stat. at Large, vol. 7, p. 302) and this habit could hardly be predicated of a defendant who had ceased to live there altogether; and the Act of 1825, (do. p. 329) giving the city court current jurisdiction with the common pleas, in suits on certain mercantile contracts, to any amount, especially restricts the jurisdiction to cases where the defendant is a resident within the limits of the city, or is not a resident of the State.
    The construction of the Recorder leads to the anomalous result of making a citizen of the State a resident of the city for eight months after he may have become bona fide a resident of some other place, provided only, that he can be found in Charleston, by the city sheriff; thus continuing for this length of time a residence by definition, which had ceased to exist by habitation ; suing him in the city court as a resident, but, at the same time, double taxing him in the city treasury, as a non-resident.
    Dukes, contra.
   Curia¿ per

Frost, J.

The appeal submits to the consideration of the court, the construction of the Act of 1818, to enlarge the jurisdiction of the city court of Charleston. The Act provides, that “nothing in this Act contained shall be construed so as to extend to any inhabitant of this State who may not be a resident within the city of Charleston ; and no person shall be construed to be a resident of the said city, unless he shall have resided in the said city three months prior to the commencement of the suit or prosecution, or shall have resided in the said city four months during the year preceding the commencement of She said suit or prosecution.”

The defendant, it is admitted, was an inhabitant of the> State, and was not a resident of the city, when the process from, the city court was sued out. The first member of the clause, that nothing in the Act contained shall be so construed as to subject an inhabitant of the State, who is not a resident of the city, to the jurisdiction of the city court, is the principal and controlling provision of the enactment, and in subordination to it the rest of the enactment must be construed. It is possible this declaration may be limited or qualified, but that cannot lightly be assumed. The clause then proceeds to define what residents of the city 'shall be subject to the jurisdiction of the court, and describes two classes. 1st. such as may have resided within the city three months before the commencement of the suit; and,'2d. such as shall have resided within the city four months during the year preceding the commencement of the suit.

It is clear the defendant is not embraced in the first class; but it is supposed he is included in the last. The first objection to this construction is, that under the definition of a resident, it includes one confessedly not a resident' a contradiction not to be admitted. But such inconsistency is not necessary. Among the residents in the city, some may inhabit it permanently, and others at intervals of time. In Charleston, there is a considerable number of the last description — persons who reside in the city, but spend many months away from it. If such persons were included in the fii’st class, they would be almost entirely exempt from the j-urisdiction, being absent about six or seven months, and on their return, subject only after three months residence within the city prior to the suit. The number of these persons is sufficient to make the inclusion of them important, and in reference to them the second definition must be construed.

By this well known habit of many residents, persons subject to the jurisdiction of the court were defined in the Act of 1801, which provides that no citizen of the State, who shall not have been in the habit of residing in the city four months in the year, shall be subject to the jurisdiction of the court. In the Act of 1818, the uncertainty of habit is reduced by substituting a residence of four months in the preceding year. The definition, in subordination to the first clause, must assume such persons to be residents, for in defining residents, persons who are non-residents cannot be included. By this construction, effect is given to all the terms of the Act. Persons who are resident, and have been for three months prior to the suit; and persons, residents, who may not have resided in the city three months prior to the suit, but who were residents four months in the year preceding, are, by this clause of the Act of 1818, subject to the jurisdiction of the city court.

The opinion of the court is, that the plea to the jurisdiction should have been allowed, and the motion is granted.

Richardson, O’Neall, Evans, Butler and Wardlaw, JJ. concurred.  