Hamilton v. State ex rel. Hardesty

Alvey, J., delivered the opinion of the Court. The Code, Art. 75, sec. 87, provides that “no person shall be sued out of the county in which he resides, until the sheriff or coroner of the county in which he resides, shall have returned a non esi on a summons issued in such countyand in this case, the defendant, having tendered his plea, in the nature of a plea of abatement, at the appearance term, and before defence taken, with a proper affidavit as to its truth, alleging his non-residence in the city of Baltimore, and his residence in Baltimore county, and that no summons had been issued against him and returned in the county of his residence, we are at a loss to understand upon what ground such plea was rejected. If upon the ground that the privilege should have been availed of by motion, and not by plea, we think the Court was clearly in error. For while, by our practice, such privilege is generally allowed on motion, supported by affidavit, it does not follow that it may not be the subject-matter of a formal plea.

And that such privilege is matter of plea, will abundantly appear from Chitty on Plead., 444, 458. We think, therefore, that the Court below was in error in rejecting the appellant’s plea of non-residence. The appellant’s exception to the reading of the injunction-bond, on which the suit was brought, because it did not appear that the order granting the injunction required a bond to be given, cannot be sustained. For, without other proof of the terms of the order itself, the bond recites that the injunction was ordered to be issued “ on the complainant’s filing with the clerk of the said Court a bond, executed by himself, and a surety or sureties, to be approved by the Court,” &c., and, having thus solemnly admitted the fact, under his hand and seal, he is precluded from denying it.

He is estopped upon the question. Lloyd vs. Burgess, 4 Gill, 187 . And as to the idea that the order, directing the injunction to issue, is to be treated as a nullity, because it does not specifically define the ³⁵³ matter upon which the writ was to operate, we think that equally untenable. The order, of course, was to be construed with reference to the prayer and object of the bill upon which it was granted.

The object of the second, third and fourth exceptions would seem to be to raise the question as to the extent of the liability of the injunction-bond, sued on in this case. The bond was filed and approved on the 16th of 'November, 1858, and the injunction was dissolved on the 16th of May, 1859. An appeal was taken from the order of dissolution, and an appeal bond executed on the 19th of May, 1859, and approved on the 24th of the same month. The order of dissolution was affirmed in the Court of Appeals on the 30th of May, 1860.

Row, which of these bonds is properly