Opinion
May Term, 1819.
From Wake.
Suit on the act of 1741, ch. 11, to recover the penalty given for excessive usury. Defendant pleaded the general issue, and on the trial moved to nonsuit the Plaintiff, because the suit was not brought in the county where the usury was committed. Motion disallowed. This matter should have been pleaded in Abatement, under the act of 1777, ch. 2.
Objections to the jurisdiction of the Superior Courts must, in general, be pleaded; and they can be taken on the general issue, only in cases where the action is in its nature local, as relating to the possession of land, or where a court has no jurisdiction at common law, or where no court of the State has jurisdiction or where it has been taken away by statute, without prescribing the manner in which the objection shall be taken, and in cases of the like sort.
This was an action brought to recover the penalty given by the act of Assembly of 1741, ch. 11, to restrain excessive usury. The Defendant pleaded in chief, and the cause came on for trial; when it appeared in evidence, that the Plaintiff was an inhabitant of WAKE, where the suit was brought, and the Defendant was an inhabitant of ORANGE, where it was alleged the usury had been committed; whereupon a non-suit was awarded on the motion of the Defendant's counsel. A rule being obtained on behalf of the Plaintiff to shew cause why the non-suit should not be set aside, the same was referred to this Court; and at this term,
This question depends upon the construction of the ninth section of the act of 1777, ch. 2, which directs that varous actions therein enumerated, and amongst them, "all suits on penal statutes," shall be commenced in the Court of the district where the cause of action shall arise, and not in any other district. It then proceeds to regulate the bringing of other suits in different courts according to the (40) residence of the parties, and concludes with these words, "and where any action shall be brought otherwise than is herein described, such action or suit may be abated on the plea of the defendant."
Before the passage of this act, an action on the Statute of usury might be brought in any court of record in the State, by the very terms of the act of 1741, ch. 11. For the statute of 21 Jac., 1, which confines actions on penal statutes to the counties where the offence was committed, does not extend to penal statutes, subsequently passed; as appears to be well settled by many decisions: though Lord Holt entertained a different opinion. ( Rex v. Gaul, 1 Salk, 372-3 — French v. Cochran, Andrews, 25.) The action then remained transitory as it was at common law, and the Plaintiff might declare in any county he pleased, subject to the ordinary power of the court of changing the Visne. No alteration in this respect was made by the Court Law enacted in 1746, ch. 11; which in allotting the then existing counties to the three Superior Courts, (if they may be so called) of Edenton, Edgecombe and Wilmington, only provides that where the Visne, is laid in certain counties, the trial shall be by Nisi Prius, at the three places last mentioned: But as to laying the Visne, though it directs that local actions, or rather all actions, shall be laid in the county where the cause of action shall arise, yet it expressly excepts criminal cases and transitory actions. When the act of 1777 made penal actions local, it also provided the manner in which the want of jurisdiction should be excepted to; and this manner differed from that which had been prescribed by the 21 Jac. I, ch. 4. According to which, if the offence be not laid and alleged to have been committed in the county where it was in truth committed, the Defendant, upon the general issue, shall be found not guilty. And I think that this difference in the provision of the two laws must be attended with a correspondent difference in practice, and that the Defendant cannot under the act of 1777, avail himself of the want of jurisdiction after pleading the general issue, as he might have done by pleading in (41) abatement. The objection taken by the Defendant in this case, is properly to the jurisdiction of the Court: he might have availed himself of it in the shape of a plea to the jurisdiction in abatement of the suit; and it is more fit to be decided by the Court than by the jury upon the general issue. The statute of 211 Jac. I, already cited, enables the Defendant to plead the general issue, and give the special matter in evidence; yet, under expressions thus comprehensive, the Defendant cannot avail himself of any matter which goes to the jurisdiction of the Court. (4 Term 109.) In the case of the Kinlocks (Foster 16), they objected to being tried before the Special Commission, sitting in England, on the ground that the offence was committed in Scotland. But it was held that the objection being in the nature of a plea to the jurisdiction of Court, could not be made on the issue of not guilty; nor could any evidence in support of the objection be received on that issue. The general rule to be collected from the books is, that in general, objections to the jurisdiction of the Superior Courts must be pleaded; and, wherever the objection can be taken on the general issue, I think it will be found to apply only to those cases where the action is in its nature local, as relating to the possession of land ( 3 Mass. 24); or where a court has no jurisdiction; or it has been taken away by statute, without prescribing the manner in which the objection shall be taken; as in the case of Parker v. Elling (1 East., 352), when a public statute enacted that "no action for any debt not amounting to forty shillings and recoverable by that act, shall be brought against any person residing within the jurisdiction of the Court of Requests in the island of Ely, in the Courts of Westminster." An action was brought on such a debt, and the objection was taken on the general issue. The opinion of the Court takes the distinction which appears to me to reach the (42) whole length of this case. "Some acts of Parliament, giving a peculiar jurisdiction, require that it shall be pleaded, in case the parties claiming the privilege shall be sued elsewhere; and others direct that a suggestion shall be made on the roll; and in those cases the methods pointed out by the respective statutes must be pursued. But here is a general law, of which we are bound to take notice, c." It is true that an intimation was given by the same judge in Taylor v. Blair (3 Term, 452), that even on the general issue, if the objection were made at the trial, the plaintiff might be non-suited; but the decision itself is founded on the same principles stated in the opinion of the Court in Parker v. Elling. In conformity with these cases is the opinion of Chitty (1 Plead., 421) — "The methods pointed out by the respective statutes must be strictly pursued."
Cited: Killian v. Fullbright, 25 N.C. 10; Duffy v. Averett, 27 N.C. 462; Wicker v. Roberts, 32 N.C. 487. (43)