7 N.C. 39 | N.C. | 1819
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 *37
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 (
Cited: Killian v. Fullbright,
