Campbell v. Webb

Eccleston, J., delivered the opinion of this court. This suit was instituted by the appellant against F. N„ Webb, H. Hicks and D. M. Deitrick, for taking a mare, wagon and harness, from the possession of the appellant, he being the owner of the property; which suit commenced on the 3rd of November 1856. The defendants severed in their pleadings. Webb filed two pleas.

First. That he did not commit the wrong. Second. That he took the property mentioned in the declaration, under and by virtue of an attachment issued by James W. Leggett, a justice of the peace, duly commissioned and qualified, directed to him (Webb) as a constable.

Hicks also filed two pleas. First. That he did not commit the wrong. Second.

That at the time of the alleged trespass, he was one of the administrators of George W. Lahn, deceased, and the plaintiff being indebted to the. said Lahn, and the plaintiff not being a citizen of the State of Maryland, and not residing therein, he the defendant exhibited to James W. Leggett, a justice of the peace in and for Washington county, duly commissioned and qualified, the account on and by which the plaintiff wras indebted, as aforesaid, to the said Lahn; and at the same time he, the defendant, made oath before Leggett, ,the justice, as required by law, to obtain a writ of attachment, commonly called a foreign attachment, against the goods and chattels of the said plaintiff, whereupon a writ of attachment commonly called a foreign attachment, was issued by the said justice, and directed to Floyd N. Webb, a ⁴⁷⁸ Constable of said county, who by virtue of the same levied upon and seized the goods and chattels mentioned in the declaration, being the goods and chattels of the plaintiff. Deitrick, the third defendant, filed two pleas similar to those filed by Hicks. The plaintiff took issue on the first pleas of the defendants, and filed six replications; which it, was agreed should be considered as applying to the second plea of each defendant. The first four replications were traversed, and issues were joined upon them.

The 5th and 6th replications were demurred to. No causes of demurrer are particularly expressed, as required by the.act of 1856, cli. 112, sub-ch. 2, art. 1, sec. 37. We learn however, that under the agreements filed in the cause, it was the understanding of counsel, that notwithstanding the form of the demurrer, it should have the same effect as if the causes of demurrer had been specified, according to ■the provisions of the statute. The 5th replication is, “that the plaintiff in the said attache ment proceedings, did not at the time of suing said attachment, set up at three of the most public places in the county, at least ten days before the return day of said attachment, an affidavit of the truth of their claim, upon which the said at- . tachment issued, together with a copy thereof, as required by law.” The 6th replication is, “that at the time of issuing the said attachment, the plaintiffs in the said attachment proceedings, did not file a short note to be sent out with the said writ of attachment, to be set up at the court house door.” The demurrer to these replications, was sustained by the court below.

Whether in so doing the court decided erroneously, is a question presented by this appeal. The appellant contends, that even conceding his replications did not entitle him to a judgment upon the demurrer, yet the judgment should have been in his favor, because of defects in the second plea of each defendant. In support of this position, he refers to sub-ch. 2, art. 1, sec. 40, of the act of 1856, where it is said: “When issue is ⁴⁷⁹ joined on demurrer, at any stage of the cause, the court shall-consider the allegations through the whole series of pleadings, and give judgment according, as the very right of the cause and matter in law shall appear unto it, without regarding any imperfection, omission, defect in, or lack of form, for the party who on the whole appears to be entitled to it. And no judgment shall be arrested, stayed or reversed, for any such imperfection, omission, defect in, or lack of form.” The appellant says, the second pleas are defective, because they set up a justification for taking the property in dispute, under an attachment issued by a justice of the peace, without setting forth all such facts as were necessary, to show that the justice had jurisdiction and authority to issue the writ.

Inasmuch as a justice has only an inferior and limited jurisdiction, it is contended, that a plea of justification cannot be a valid defense, when based upon such a writ as the one in question, unless the plea shows that the writ was issued, under circumstances which gave the justice jurisdiction. Such an objection to the pleas before us might have been a valid one, under the old system of pleading, inasmuch as the pleas do not contain statements of all the facts necessary to constitute legal justification. But the act of 1856 has made an important change in this respect. The 60th section, of sub-chapter 2, article 4, provides, that “ Where in a pleading, any thing is alleged generally to have been done, it shall be considered as meaning legally done, and by the proper instrument of writing, where one is required, without stating how or in what manner it was done.” The pleas allege generally, that the property was taken under and by virtue of a writ of attachment, issued by a justice of the peace of Washington county, and directed to Webb as a constable.

By our laws, justices of the peace have authority to issue attachments, in certain cases. And under the new system of pleading, the general allegations here made,, that the property was taken by virtue of an attachment, issued by a justice of the peace, must be considered as meaning that the writ was legally issued. The pleas are therefore to be understood as alleging, that everything was done which was neces ⁴⁸⁰ sary to render the attachment, a legal and valid, proceeding. And when issues are taken on such pleas, the onus is cast upon the defendants, of proving not simply the truth of the general allegations, but also of proving every fact necessary to establish the legality of the acts alleged to have been done.

A failure to do so, in any respect, may be taken advantage of by the opposite party, by asking an instruction from the court in regard to the proof. Looking at the pleas in the aspect stated, we do not think the plaintiff was entitled to a judgment upon the demurrer, on account of errors in the second pleas. The demurrer with reference to the 5th replication, was correctly decided in favor of the defendants. To sustain that replication would be to affirm that the attachment was illegal and void, because the plaintiffs in the attachment did not at the time it was issued, set up at three of the most public places in the county, at least ten days before the return day thereof, an affidavit of the truth of their claim, upon which the attachment issued, together with a copy thereof.

It is true, that the act of 1849, ch. 269, would seem to require such a notice should be given; but in our opinion this has been dispensed with, by the act of 1852, ch. 239, sec. 2. It is provided in the latter act, that “in all actions of replevin and attachment, the proceedings before the justice of the peace, shall be similar to those in the several circuit courts of the State.” The notice prescribed in the act of 1849, is not required in any part of the proceedings in attachment in the circuit courts. In those cases, it is made necessary by the act of 1795, ch. 56, that a short note should be filed and a copy thereof sent with the writ, to be set up at the court house door by the sheriff. This notice, by means of a copy of the short note being required, by virtue of the provisions in the act of 1852, must be considered as a virtual repeal of the notice prescribed in the previous act of 1849.

The 6th replication alleges, that at the time of issuing the attachment, there was not filed a short note to be sent out with the writ, to be set up at the court house door. That the filing ⁴⁸¹ uf such a paper was necessary, will appear from what has been already said, with reference to the acts of 1852 and 1795. In Stone vs. Magruder, 10 G. & J., 385 , the court say:' “The act of Assembly of 1795, ch. 56, in its third section declares, that upon the issuing of every attachment, there shall be therewith issued, a writ of capias ad respondendum, against the defendant, and a declaration or short note, expressing the plaintiff’s cause of action, shall moreover he filed and a copy thereof sent with the ivrit, to be set up at the court house door by the sheriff. ’ ’ “By the plain and obvious construction of this section, the attachment per se would have no validity; it must always be attended with a capias and short note. In the language of the law, the capias is to be issued therewith, and a copy of the short note is to be sent with the capias.” In Brent vs. Taylor & Marks, 6 Md. Rep., 70 , which was the case of an attachment against a married woman, under the act of 1842, ch. 293, the court say: “The want of the short note is fatal to the proceedings.

Without it they are coram non judice and void.” And several Maryland decisions on the subject, are referred to in support of the views of the court. See also 6 G. & J., 348 . 1 Gill, 379, 381 , 382 and 383. It has been contended, that the attachment is a justification to Webb, the constable, if not to the other defendants. Let us examine whether this is true.

In reference to tribunals of limited jurisdiction, many cases are to be found which state it as a general principle, that if an inferior court exceeds its jurisdiction, its