Mayor and Aldermen of Savannah, &c. vs. The State of Georgia, &c. Commissioners, and in the next place, it is made the imperative duty of the Commissioners so chosen, to proceed to execute the duty required by the Act, whenever a day is fixed by either party for that purpose, and the rest duly notified thereof.

It may be conceded that the Legislature could not compel the defendants to do any thing not within the line of their duty. It is insisted, however, and we think very properly, that the requisition here made, comes legitimately within the pale of their official functions. Who so fit and proper to execute a commission which had for one of its avowed objects "the improvement of the navigation of the River Savannah," as the Mayor and Aldermen of the City of Savannah and the Commissioners of Pilotage for the bar of Tybee and River Savannah? No one. The entire superintendence and guardianship of the City and River, and the interests and welfare of each, are intrusted by the charter of 1825, and the various Acts amendatory thereof, to these officers. Dawson's Comp. p. 464, secs. 5, 6, 9. Pamp. Act of 1838, p. 63, sec. 2. Act of 1815, Lamar's Dig. p. 678. Act of 1807, Clayton's Dig. p. 425. Act of 1828, Dawson's Comp. 479.

In the nervous language of Judge Fleming, "well might the Legislature call upon them as public officers, and in the discharge of their official duty, to superintend the location of the line of wharf-heads along the shore of Hutchinson's Island. The Legislature indeed, would have been wanting in its duty to the public, had they authorized this line of wharf-heads to be established, without the supervision of the defendants, whose peculiar duty it is to see that the navigation of the river is not injured by illegal obstructions."

The right of the relators then to this writ, seems to be manifest; and the only obstacle really is the reluctance of the defendants to discharge the duty required of them by the statute, believing, as they no doubt honestly do, that it will result in detriment to the City whose welfare is committed to their hands.We can appreciate their scruples, but those fears, however wellfounded, cannot justify their resistance. It has been well said, that "laws enjoin duties without and against the will of those who are to perform them." In the stern execution of law, a Roman Consul was called on to condemn his own sons to an ignominious death.

During the late pecuniary convulsions, through which we have

Bostwick vs. Perkins, Hopkins & White.

passed, when our paper currency, owing to the suspension of the Banks, had depreciated from fifteen to forty per cent. below par, and specie funds were exacted in the payment of debts, how ungracious the office in Judges, Attorneys, Sheriffs and other public agents, to enforce the precepts of the Court at the enormous sacrifice which was made of the debtor's property. Yet no honest man hesitated. How vital to this, and every other business community, that the law should triumph! Were Savannah, our commercial emporium, to be blotted from the map of the State, and her very site become another Dead Sea, still, when the sovereign authority constitutionally speaks, its mandate must be obeyed!

The Act of 1841 was passed for the purpose of improving the navigation of the River, and benefiting the commerce of the City. Those who obtained its enactment believed, no doubt, that such would be its effects. Should these expectations not be realized, and there is reason to apprehend that they will not be, it will not be the first time where results have failed to fulfil our anticipations. Midas prayed that whatever he touched might be turned into gold, and the request of the Phrygian King was granted. But when the very meats which he attempted to eat became gold in his mouth, he earnestly implored the Gods to take back the fatal gift.

Whether the General Assembly possess this dispensing power in the present case, it is not for this Court to decide. All that we can do now is, to affirm-as we most cordially do-the able and independent judgment pronounced by the Court below.

No. 4.-ALFRED C. BOSTWICK, Adm'r of James Bright, deceased, plaintiff in error, vs. PERKINS, HOPKINS & WHITE, defendants in error.

[1.] Where a Court has jurisdiction of the person, and the subject matter of the suit, and the defendant has some privilege exempting him from the jurisdiction, he may waive the privilege if he chooses to do so; as where a party was sued in a Court of law, for a subject matter, more properly cognizable in a Court

Bostwick vs. Perkins, Hopkins & White.

of Equity, and the defendant acquiesced in the jurisdiction of the Court, and confessed judgment to the plaintiffs: the Court refused to set aside the judg ment on that grouud, after the lapse of more than five years.

[2.] Parties cannot by consent give the Court jurisdiction, where it has none by law.

This was a motion to set aside a judgment for $3537,8%, in favor of the defendants against the plaintiff in error, in Pulaski Superior Court. Tried before Judge SCARBOROUGH, and motion refused, October Term, 1847.

All the facts necessary for a proper understanding of the points decided, are embodied in the opinion of the Court.

WM. S. ROCKWELL, for plaintiff in error, cited the following authorities:

1st. As to the judgment being void. 8 Conn. 584. 1 Peters' C. C. R. 4S2. 13 S. & R. 186. 5 Id. 358. 2 Const. R. So. Ca. 339. 3 Munf. 550. 4 Id. 95. 5 Id. 23. Conn. 513. Dougl.

3

Pet. 691.

9 J. R.

9 Id. 462. 12 Id.

2d. As to the jurisdiction of the Court. 6 229. Kirby, 119. 1 Dall. 261. 5 Mass. 67. 25. 1 Id. 401. 6 Pick. 232. 6 Verm. 580. 4 Conn. 380. 6 Wend. 447. 2 Hall, 358. 1 Ham. 260. 3 J. J. Marsh. 600. 1 Miss. 529. 2 Blackf. 108. 1 Bailey, 294. 2 Bingh. 213. 2 Tyler, 218. 1 Dunlap's Prac. 428.

3d. As to the acquiescence of the party. 4 McC. 79. 1 N. & McC. 192. 1 Bibb, 262. 3 Mc C. 280. Breese, 31. Coxe, 31, 70. "Debile fundamentum fallit opus," 6 John. R. 331.

66

4th. As to the lapse of time. 3 Ham. 16. 4 Wend. 217. 3 Mc C. 19. Quod ab initio non valet, in tractu temporis non convalescit."

HARRIS-representing WARREN-contra.

By the Court.-WARNER, J., delivering the opinion.

From the record in this case, it appears that an action of assumpsit was instituted in the Superior Court of Pulaski county, against Bostwick, the plaintiff in error, as the adm'r of James

Bostwick vs. Perkins, Hopkins & White.

Bright, deceased, on a promissory note made by Bright & Walker, who were copartners.

The defendant was duly served with process and confessed judgment to the plaintiffs, for the amount due on the note in the Court below, and judgment was rendered against him in July, 1841. In October 1847, the defendant made a motion in the Court below to quash the judgment, and set the same aside for irregu larity. First. Because it appears from the record in said cause, that the defendant was the administrator of James Bright, deceased, who was a copartner of James Walker, and that said Walker was a surviving copartner, and that said judgment was against said Bostwick as administrator as aforesaid, and therefore null and void.

Second. Because the administrator of a deceased copartner cannot be sued at law.

Third. Because a Court of law has no jurisdiction over an administrator of a deceased copartner.

The record does not disclose affirmatively, that Walker was the surviving copartner of the firm of Bright & Walker-as to that fact, the record is silent. The ground of the motion to set aside the judgment in the Court below is, for the want of jurisdiction in that Court. The argument is, that a Court of equity, and not a Court of law, had jurisdiction of the case as made by the record, and therefore, the whole proceeding was coram non judice.

[1.] Where the Court in which the judgment is rendered, has no jurisdiction either of the person, or the subject matter of the suit, then the whole proceeding is unquestionably void, and a nullity-but where the Court has jurisdiction, both of the person and the subject matter of the suit, although it may err in its opinion of the law, yet such judgment is conclusive upon the parties to it, where there is no appeal. Had the Superior Court of Pulaski county jurisdiction of the defendant, and the subject matter of the suit, as disclosed by the record in this case? By the constitution of this State, and the Judiciary Act of 1799, the Superior Courts have power, and authority, to hear and determine all civil causes, in the county where the defendant resides.Prince's Dig. 910. Ibid, 419.

It appears from the record, the defendant resided in the county of Pulaski where the judgment was rendered, and therefore, the

Bostwick vs. Perkins, Hopkins & White.

Court had jurisdiction of the person of the defendant. It also appears the suit was instituted for the purpose of collecting the amount of a promissory note which was the foundation of the action. The Superior Court had general jurisdiction in the county of Pulaski where the cause was tried and the judgment rendered; and it was a civil cause which the Court was empowered by the Constitution and laws of the State, to hear, and determine. We are of the opinion, the Court in which the judgment was rendered, not only had jurisdiction of the person, but had also jurisdiction of the subject matter of the suit, that is to say, the Court had the authority, under the Constitution and Laws of the State, to hear, and determine the cause made by the record. It is said this Court has decided in Roosevelt & Barker vs. M'Donell, Ex'r, 1 Kelly, 489, that the representative of a deceased copartner cannot be sued at law for a copartnership debt; that the surviving copartner is alone liable therefor. Such was the judgment of this Court in that case; but before that decision was made, it was the practice of some of the Courts in this State, to hold, that such representative could be sued at law, under the provisions of the act of 1818-and such it is quite probable was the rule of decision in the Court where the judgment was rendered against the plaintiff in error in 1841-and if so, that judgment was as binding and conclusive upon the parties, as any other judgment, rendered by a Court of competent jurisdiction.

Admitting there was error in the judgment of the Court which pronounced it as to the Law of the case, yet, the court exercised its judgment in relation to a subject matter within its jurisdiction, and it must be considered as binding on the parties to it. The counsel for the plaintiff in error insists, that a Court of Law had no jurisdiction over the subject matter as appears from the face of the record, but that a Court of Equity had the exclusive jurisdiction thereof.

[2.] Although a party cannot by consent, give the Court jurisdiction, where it had none under the Law; yet where the Court has jurisdiction of the subject matter, and the person, and the defendant has some privilege, which exempts him from the jurisdiction, he may waive the privilege if he chooses to do so.— Overstreet vs. Brown, 4 McCord's Rep. 80. It was the privilege of the plaintiff in error, when the suit was instituted against him in the Court below, to have objected to the jurisdiction of the