1848. October Term. ሀ. Gibson. judgment. The Supreme Court of New York held, that inasmuch as the justice had no jurisdiction over actions of assault and battery, the former judgment was M'Carty null, and could not be pleaded in bar of the second suit. Other cases in the same Court have gone to the extent, that where a Court is expressly inhibited by law from taking jurisdiction of a subject, no consent of parties could confer jurisdiction; and that a confession of judgment even would be a mere nullity. Thus in the case of Coffin v. Tracy, 3 Caines' R. 129, a confession of judgment by an executor in a Justice's Court, was held wholly invalid; there being a statute of New York forbidding justices to hold pleas in cases where executors or administrators are parties on either side. The same principle was recognized in the case of Striker v. Mott, 6 Wend. R. 465. And in this Court, in the cases of M'Call v. Peachy, 1 Call 55, and Clarke v. Conn, 1 Munf. 160, the general principle was asserted, that when the Court had not jurisdiction of the subject matter, the consent of parties cannot give it. In this aspect of the case, it does not seem to be material whether the want of jurisdiction in the County Court of Maryland to make an order for the discharge of a debtor, reaching to contracts made in other States, and between citizens of such other States, be placed on the ground assumed in the third resolution of the Supreme Court, in the case of Ogden v. Saunders, to wit, that "the exercise of such a power is incompatible with the rights of other States, and with the Constitution of the United States;" or on the general doctrine of international law, that the discharge of a contract by the laws of a country in which the contract was not made or to be performed, will not be a discharge in any other country. Upon the first hypothesis there would be an inhibition to the jurisdiction of the Court, which the mere appearance of the party to oppose the discharge could not remove; and upon the second, a mere want of VOL. V.-42 1848. October Term. M'Carty V. Gibson. power of the Court over the subject matter, which such appearance could not confer. In this view I am further sustained by the decision of the Supreme Court of Connecticut, in the case of Norton v. Cook, 9 Conn. R. 314. In that case the discharge was obtained in New York, in pursuance of an act of the legislature of that State, and purported to discharge the debtor from all debts, &c., due before the assignment of his property under the act. The contract was made in New York, and the discharge obtained at a time when the creditor was a citizen of Connecticut, and the debtor a citizen of New York. In the suit brought in Connecticut on the contract, the discharge was regularly pleaded; and it was averred in the plea that upon a citation to appear before the Judge before whom the insolvent's petition was pending, and shew cause why the insolvent should not be discharged, the defendant and plaintiff had both appeared before said Judge, and were fully heard on said petition. From a judgment of the Court, deciding the plea to be insufficient, there was an appeal, and the judgment of the Court below affirmed. The Supreme Court of Connecticut, after first deciding that the discharge was, under the authority of the cases decided by the Supreme Court of the United States, invalid, proceeded to consider whether the creditor had done any act which precluded him from insisting on its invalidity. "It is averred in the plea, (said the Judge delivering the opinion of the Court,) that the plaintiff was cited to appear, and did appear by attorney, before the Judge, and was fully heard on the debtor's petition then pending. And it is contended that by this act he has waived his extra-territorial immunity, and submitted himself to the laws of the State of New York. The case of Clay v. Smith has been relied on as sustaining this position. In that case the only point decided was, that the defendant having obtained his certificate of discharge under a State law, and the plaintiff having come in and received his dividend under the law, was no longer at lib erty to question its constitutionality." "It is very manifest that this case is not like the present, in point of fact; and I think there is a clear distinction between them in point of principle. There, the plaintiff might be considered as acquiescing in the validity of the discharge, by coming in voluntarily and accepting a dividend under it. But here no such inference can be drawn. The clear inference from the averments in the plea, is, that the plaintiff appeared to oppose the motion; and it would be difficult to conceive upon what principle he can be considered as acquiescing in the constitutionality of the law, when, for aught that is shewn, the very object of his appearing was to make it appear that the law was unconstitutional." upon I do not deem it necessary to express any opinion as to the propriety of the decision, in the foregoing case, the first question therein presented, but I rely upon the reasoning of the Court upon the second branch of the case, as strong in support of the view I have taken of the effect that Gibson's appearance to contest his debtor's discharge, ought to have upon his rights. I have not seen any decision of the Supreme Court of the United States, or of any of the State Courts maintaining the proposition that a discharge of an insolvent debtor, under the laws of one State would, of itself, be valid as a discharge of a contract made in another State between citizens of such other State; and there has not, in my opinion, been any thing in the conduct of the ereditor to bring him within the influence of the case of Clay v. Smith, or to debar him of the privilege of insisting upon the invalidity of the discharge before a Virginia forum. I am of opinion therefore to affirm the decree. The other Judges concurred in the opinion of Judge Daniel. Decree affirmed. 1848. October M'Carty V. Gibson. 1848. October Term. Richmond. NASH V. UPPER APPOMATTOX COMPANY. 1. On a motion for a continuance of a cause on account of the absence of witnesses, the facts which it is expected to prove by them, are stated. If it does not appear that the proof of these facts might be material on the trial, the continuance should be refused. 2. The 9th section of the act, passed the 23d February 1835, entitled "an act to authorize the Upper Appomattor company to enlarge their capital stock, and for other purposes," Sessions Acts 1834-5, p. 82, embraces the case of a proprietor, whose land is injured by the erection of a dam across the river, to condemn the abutments of which dam no writ of ad quod damnum had been sued out by the company, they having agreed with the proprietors of the lands owning the abutments.* 3. There having been no previous writ of ad quod damnum sued out by the company, to assess the damages sustained by a proprietor of land injured by the erection of a dam, it was proper that the writ sued out by the proprietor, should direct the jury to enquire of and assess the damages sustained by him generally, and not limit it to damages which had not been foreseen, estimated and satisfied. 4. It was not necessary, either in the writ or inquest, that the land injured should have been set out by metes and bounds; and the finding, in the inquest, that the proprietor's lands had been injured by the overflowing of the waters of the river, produced by the erection of the dam, and that the damages assessed were on that account, was sufficiently specific. At the October term 1840 of the County Court of Amelia, upon notice duly served upon the superintendents of the Upper Appomattox company, Abner Nash moved the Court for a writ of ad quod damnum to ascertain the damages that had accrued to his lands by the erection of a dam across the Appomattox river at Randolph's gravel; which dam abuts upon the lands of John Huddleston of Powhatan, and Richard H. Brazeal of Amelia. The writ directed that the jury should * See the opinion of the Court for the provisions of the statute. 1848. October Term. Nash view the lands of said Nash, which may probably be damaged or overflowed, and to say of what damage it will be to the proprietor. To say whether in their opinion, the health of any person will be materially annoyed by the stagnation of the waters; to specify such injury, Appomatand the probable damages thus arising. The request was regularly taken, and the inquisition returned to Court, by which it was found that the damages sustained by the said Abner Nash, in consequence of injury to his lands by the overflowing of the waters of said river, produced by the erection of the dam aforesaid, and which said damages have not been heretofore forescen, estimated and satisfied, is six hundred dollars: And that the said Nash had sustained no damage from loss of health, by reason of the erection of said dam. When the cause was called for trial, the defendants. moved for a continuance, on the ground that they had summoned several members of the jury who sat on the inquest, to prove that the assessment of damages made by the jury, was made under an impression derived from the agent of the company, (who however was mistaken therein,) that the dam complained of was three feet nine inches high, when in fact it was only twenty-seven inches high; the agent being in Court, and proving that fact. These witnesses being absent, and it being admitted that they were only summoned to prove this mistake, and their materiality as to that fact being sworn to, the Court overruled the motion, and the defendants excepted. The defendants then moved the Court to quash the writ of ad quod damnum, for the reason that the said writ was illegal, and upon the face of it informal and otherwise insufficient; there having been no previous. writ of ad quod damnum to enquire of damages occasioned by the dam erected at Randolph's gravel, and here complained of, abutting against the lands of Rich Upper tox Company. |