Dearing, et al. vs. The Bank of Charleston, et al. 66 Borden vs. Fitch, Thompson, Chief J. discusses the question under consideration with great ability. He says, to give any binding effect to a judgment, it is essential that the Court should have jurisdiction of the person, and the subject-matter-the want of jurisdiction makes it utterly void and unavailing for any purpose." 15 Johns. 141. It would be an imperfect conception of the view we have endeavored to present of this case, to suppose that we consider the decree in favor of William Dearing, in the light of an interlocutory judgment, so far as the Bank of Charleston is affected by it, which may be opened for a re-hearing, at the instance of that corporation. We hold it a mere nullity. In the language of Parsons, Chief J. in Bissell vs. Briggs, "no credit," is to be given to it. According to Judge Reeve, in Grumon rs. Raymond, 1 Day's Conn. R. 40, it is, "as though there was no Court." Being a nullity, it in no way affects the rights of the Bank. If it had been rendered in this State by authority of law here, it would be conclusive on the Bank, whilst in Carolina and in all other States, it would be held a nullity; but being without authority of law in Georgia, it is equally void here as elsewhere. 10 Coke, 70. 9 East, 192, 194. 3 Ves. 170. S. C. 5 Ves. 276. 1 Star. 525. 2 Barn. & Adol. 951. 5 Bing. N. C. 208. 4 Barn. & Cress. 625. 5 Clarke & Fin. 1, 20, 21. 3 Perr. & Dav. 143. 8 Johns. 194. 15 Ib. 121. 9 Mass. 462. 7 Cranch, 481,486. 5 Mas. 35. 8 Mass. 473. Story's Confl. of Laws, sec. 546, 547, 119. 5 Johns. 2, 41. 1 Day, Conn. R. 429 to 449. Ch. R. 436, 437. 548. Kirby, 2 McCord's It has been already intimated, that if the citizen of a foreign State should appear and defend a suit, and a judgment in personam should be rendered against him, he would be concluded by it. He may waive his exemption from the jurisdiction, and being heard, could aver nothing in any tribunal, against the judgment. Directly to this point, see the case of Picquet vs. Swan, 5 Mason, R. 35, and 1 Denio, 91. Nor does the opinion we now express make void the 2d rule in Equity. For certain purposes it remains in full effect. It cannot legalise a judgment against a non-resident, who has never been within the State, but has the same useful operation that the Statute 5 George II. has in England. It provides the means of making citizens of this State parties, who abscond or depart Dearing, et al. vs. The Bank of Charleston, et al. from the State to avoid service of the process of the Court, and thus avoids delays of justice, by compelling complainants to proceed, and defeating pleas in abatement for non-joinder of parties. A foreign citizen in Georgia, is amenable to the jurisdiction of our Courts. If such an one, having been in the State at the time suit is instituted against him, departs from the State to avoid service, and to evade the jurisdiction of the Court, I am not prepared to say but that he may be made a party by publication under this rule, and would be concluded by a judgment. What is the extent of the jurisdiction of our Courts, over a foreign citizen, resident in Georgia, or temporarily within its limits, I shall not now inquire. I mean only to say, that service of process upon him, in the case put, under the rule, would make him a party, and the judgment would bind him to the extent of that jurisdiction. Again, the rule is wise and beneficial, and even benignant, in this, that it affords the means of notice even to citizens of a foreign State, who have never been within the State, and are not subject to our sovereignty and to the processes and judgments of our Courts, by which, if they think proper so to do, they may appear and answering, avoid the necessity of instituting new and independent proceedings. It extends to them valuable facilities. So that we do not make void the rule, but establish it. The effect of the decree, as a judgment against the Augusta Insurance and Banking Co. and upon the stock and dividends awarded to Dearing, is disclosed necessarily, in what has been already said. The jurisdiction over the property and the company, is not denied. As between the Company and Dearing, it is conclusive. It settled all the equities between them, and must operate as a protection to the Company, not only against Dearing, but also as against the Bank of Charleston. In this cause, it seems to stand in the position of a custodium of the stock-it is treated in the decree, as the depository of the dividends. The decree directs it to transfer the one, and pay the other to Dearing. Being compelled by a Court of competent jurisdiction to do these things, it must be protected by its judgment, and being notified and heard, it must also be concluded. As between Dearing and the Bank of Charleston, he takes the decree, “valere quantum valere possit." He certainly gets by his purchase and the execu tion of his decree, the interest in the stock, whatever that may be, which Peck, the defendant in execution, had. If the Bank Dearing, et al. vs. The Bank of Charleston, et al. of Charleston has a title to the stock, better by the laws of the land than his, or an incumbrance upon it prior in time and superior in legal effect, to his title, or to his claim, as the creditor of Peck, Dearing's title or claim must yield to the title or the incumbrance of the Bank, whenever that institution shall properly assert its title or its incumbrance. It only remains for me to inquire whether there is anything in the bill filed by the Bank of Charleston, to authorize the Court to enjoin the execution of Dearing's decree? We have seen that that bill was filed to set up the claim of the Bank to the stock in question, and the dividends due thereon, and to enjoin the execution of Dearing's decree. Upon the doctrine settled by this decision, to-wit: that as to the Bank of Charleston, it is no decree; the transfer unde. it is a matter, in itself, of no consequence. The plenary execution of it, would not make it a decree. Then, as now, it would be a nullity. The ground upon which the injunction is asked, is, that the Bank of Charleston was not notifiedis not amenable to the jurisdiction of the Court, and is not concluded by the decree. As to notice, that is not to be considered, since we hold, that with or without notice, the Bank is not concluded. The fact that the Bank of Charleston is not concluded by the decree, because an inhabitant of a foreign State, is not, of itself, sufficient to authorize the injunction. No other ground or cause for the injunction is set forth in the bill of the Bank. At the same time that we so rule, we do not say that the Bank, upon a case made, would not be entitled to an injunction against the execution of the decree, or against Dearing, when it is executed. The injunction must depend upon those general principles which regulate that process. Suffice it to say, that the bill of the Bank does not make a case, which, upon those principles, calls for the exercise of the power of the Court by injunction. The injunction must be dissolved and the decree proceed. Whether the bill of the Bank be, or can be made by amendment, sufficient to assert and protect the rights of the Bank of Charleston in the premises, or whether a new bill ought to be brought, are questions which are not made in this recoid, and upon which, therefore, we express no opinion. Let the judgment be reversed and the injunction be dissolved. Manor, et al. vs. McCall, et al. No. 59.-JOHN S. MANOR, et al. Justices of the Inferior Court of Scriven county, plaintiffs in error, rs. Moses N. MCCALL, et al. Commissioners, defendants. In 1847, the Legislature passed an act "to establish and make permanent the new county site" of Scriven county, "to provide for building a Court-House, &c." and "to appoint commissioners to carry the same into effect, and to provide for the payment of the necessary expenses." By the 5th section, the Justices of the Inferior Court were required to levy an extra tax, to pay the expenses. [1.] Held, That the commissioners appointed had such an interest as would authorize them to apply for a mandamus, to be directed to the Inferior Court, on their refusal to levy the tax. [2.] The Superior Court will not control the discretion of the Inferior Court, where it cannot be governed by some fixed principles or rule, unless in case of an arbitrary abuse of it. [3.] But when the law imposes a specific duty, a mandamus will be awarded against the subordinate Court, to compel its performance. Application for Mandamus, before Judge HOLT, in Scriven count y The Legislature of Georgia, in 1847, by an Act, fixed the county site of Scriven county, at Sylvania, and appointed the relators, plaintiffs in error, commissioners to lay out the town, sell the lots, and sell the old Court-House and lots at Jacksonboro,” and “for the purpose of contracting for, and having built, a Court-House and jail, at the new county site." The proceeds of these sales were to be applied to the building of the new Court-House and Jail. The 5th section of the Act reads as follows: "That the Justices of the Inferior Court of Scriven county, shall, on the second Monday in January, or at any time thereafter, before the first of May, 1848, levy an extraordinary tax, not exceeding fifty per cent. on the State tax, for the purpose of paying the expenses already necessarily incurred by said commissioners, in and about defining the centre of said county, for the purchase of said land, and for advertising in the public gazettes, as also for the purpose of paying for the building of a Court-House and jail, at the new county site." Manor, et al. vs. McCall, et al. An application was made to the Judge of the Superior Court of Scriven county, in behalf of the commissioners, setting out that they had laid out and sold the lots, at the new site, and old Court-House, and had contracted for the building of a new CourtHouse, and the removal of the old jail. That they had in hand the sum of $972 75; that there would be a balance to be raised by taxation, of $1162 62, and that it would require a tax of 50 per cent.on the State tax, to pay this amount, and praying an alternative mandamus, to be directed to the Justices of the Inferior Court, requiring them to show cause why they should not levy a tax of fifty per cent. upon the State tax, "for the purpose of paying the expenses already necessarily incurred by the said commissioners, &c." The Justices, in return to the alternative mandamus, showed for cause, that the relators (the commissioners) had no interest under the Act, being mere officers under the act, and could not receive any portion of the tax, if raised, and therefore could not apply for a mandamus. That it did not appear but that fire per cent. (the amount the Court had already assessed,) would be sufficient to be levied for the present year, as the relators did not show what was the contract, nor when it was to be paid. They farther showed that they had, according to their discretion and judgment, performed the duty required of them, by levying a tax of five per cent. And that, under the said act, the discretion of fixing the amount of taxes to be levied, (so it does not exceed fifty per cent.) belongs exclusively to the Justices of the Inferior Court, and cannot be controlled by mandamus. And further, that the time within which the taxes were to be levied had passed, and they had no authority to levy the tax if they were disposed so to do. The Judge, after hearing argument, on 12th June, 1848, overruled the several grounds, and ordered a peremptory mandamus to issue. To which decision the Justices, by their counsel, excepted, and have alleged the same to be erroneous; because 1st. The relators have no legal right. 2d. If they have, the Justices had a discretion, and having exercised it, it cannot be controlled by mandamus. The third ground, as to the time having passed, within which the law authorized the tax to be levied, was abandoned before this Court. |