
    COURT OF APPEALS, JUNÉ TERM, 1820.
    Shivers vs. Wilson, Garnishee of Walker, et al.
    
    ly^be stakelin alii piSinabafemení
    ba^generai juris! f/ro’íeeáingí'in ticSor íñhjert’ore out by statute, ihe mode so prescrib* ed must be substantully pursued.
    a court of iimited jurisdiction inost shew its ju rmhction. on the &ce «fits
    cftTs6e, sufnsa"Sments( operation! “'and derius vaibt are ' suffinraiiy
    i,under that act but state, or ot some other state of the united states.
    
    One may -be a citiz-n of the united States, and not a citiztn or any one state ot the unimd states-an allegation* there-S'smn-nutañ'a't-' wm'oftii't uSted »pJeedings' tbit’he stniófofot"!dme United states.
    
    The proceed-jugs under thi* act of 1795, ch. 56, ... must not only shew tint the oarty «ning out the attachment h a citizen of this state, or of some other of the United States, but when the garni hoe appears, anil pleads non assumOsit by the defendant, the plaintiff must at tlic tii.il, prove himself to have been, at the time of the issuing out the attachment, a citizen of this state, or of some other of the United States*
    
    Appeal from Baltimore county court. The plaintiff in court below, (the present appellant,) in order to obtain an attachment under the act of 1795, ch. 56, exhibited to the clerk of that court the following affidavit, to wit: “State of Maryland, Baltimore coúnty, set. Re it remembered, that on the 27th day of April, in the year 1816, before me, the subscriber, a justice of the peace for Baltimore county aforesaid, personally appeared Thomas Shivers, a ^ A j j i citizen of the United States, and made oath that William ° . Walker, James Collins and Jared Chesnut, not being citi0 zeas 0f t]le State of Maryland, and not residing therein, a 7 o 7 justly and bona fide indebted unto him, the said Tho-Shivers, in the sum of 83257, over and above all discounts. - And at the same time the said Thomas Shivers produced to me the protested bill of exchange and award, on and by which the said William Walker, James Collins and Jared Chesnut, are so indebted, which are hereto annexed. And the said Thomas Shivers did also make oath that he is credibly informed, and verily believes, that the said TFilliam Walker, James Collins and Jared ... r i ... _ - Chesnut, are not, nor is either 01 them, a citizen or the 7 State of Maryland, and that they do not, nor does either o 7 J 7 0f them, reside therein. 7
    Sworn before, John F. Harris.’’’’ 7
    
    The bill of exchange, protest and award, referred to, were annexed to the affidavit. There was also a warrant from the said justice, directed to the clerk of the county court, requiring him to issue an attachment against the lands, &c. of the said Walker and others. Upon this warrant, &c. an attachment issued, directed to the sheriff of the county, reciting, that “whereas John F. Harris, Esquire, one of the justices of the peace for Baltimore county, hath this day issued his warrant to the clerk of said county, directing him to issue an attachment against the lands, tenements, goods, chattels and credits, of William Walker, James Collins and Jared Chesnut, to answer unto Thomas Shivers the sum of three thousand two hundred and fifty-seven dollars;” the sheriff was therefore commanded to attach the lands, &c. of the said Walker-and others, &c. in the usual form of the mandatory part of such writs. A capias ad respondendum also issued, and a copy of the short note, which was filed, was sent with the writ. The sheriff’s return on the writ of attachment was, that he had laid the same in the hands of Nixon Wilson. The capias ad respondendum, he returned non sunt, and that he had set up a copy of the short note. Wilson, the garnishee, appeared, and pleaded non assumpsit by Walker and others, and nulla bona. Issue was taken on the first plea, and a general replication and issue was joined on the other.
    At the trial, the plaintiff produced evidence to prove, that a bill of exchange dated at St. Jago de Cuba, the 1st of August 1815, for 82912, at 60 days after sight, was drawn by H. Geddes and T. F. Pimm, in favour of the plaintiff; on Walker and others, and by them duly acceptr ed. He further gave evidence, that payment of the bill was regularly demanded of the defendants, when it became due, and refused, and that the bill was then regularly protested for nonpayment. He further offered evidence to prove, that the garnishee in this case had funds belongingto Walker and others, in his hands, to the amount of §2600, at the time the attachment was laid. The defendant then moved the court to direct the jury, that the citizenship ofthe plaintiff was not sufficiently set forth in the attachment, within the meaning of the act of assembly of 1795, ch. 56, s. 1; and that the plaintiff was not entitled to .recover without he gave evidence to the jury to satisfy them that he was a citizen of this state, or some other of the United States. The court below, \_Dorsey, Ch. J. Hanson and Ward, A. J.] gave the direction as prayed. The plaintiff excepted; and the verdicts and judgment being against him, he prosecuted this appeal.
    The cause was argued at the last term before Buchanan, Earle and Johnson, J.
    
      
      Winder, for the appellant,
    cited Campbell vs. Morris, 3-Harr, fy MlHen. 535. Smith vs. Greenleaf, 4 Harr, fy MlHen. 291, and Smith et al. vs. Gilmor Sf Sons, in this court, Dec. term 1812, and June term 1816.
    
      Pinkney and It. Johnson,
    
    for the appellee, relied on Hepburn if Dundas vs. Ellzey, 2 Cranch, 445. The Corporation of New Orleans vs. Winter, et al. 1 Wheat. 91. Campbell vs. Morris, 3 Harr.' §• MlHe'n. 553. 3 Blk. Com. 302. The King vs.-Johnson, 6 East, 586, 594. 5 Bac. M>. tit. Pleas if Pleadings, (E.) 661. Mostyn vs. Fabrigas, Cowp. 166, 172. 1 Chitty’s Plead. 426, (note b.) Bingham vs. Cabot, 3 Dali. 383. Abercrombie vs. Dupuis, 1 Cranch, 343. Wood vs. Wagnon, 1 Cranch, 9. Capron vs. Van Noorden, Ibid 126. Kemp’s lessee vs. Kennedy, et al. 5 Cranch, 173; and Bex vs. Jarvis, 1 Burr. 148.
    
      Curia adv. vult.
    
   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.  