Wake-Orange County NcArchives Court.....William P. Mangum, John Green V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 23, 2009, 7:46 pm

Source: Nc Reports
Written: 1819

John Green v. William P. Mangum

From Wake

May Term 1819

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,

Taylor, Chief-Justice: This question depends upon the construction of the 
ninth section of the net of 1777. ch. 2, which directs that various 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 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 
1710, 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 abatement. The objection taken by the Defendant in this case, is 
properly to the jurisdiction of the Court: he might hare availed himself of it 
in the shape of a plea to tke 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 21 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 at common law; or where no Court of the State has 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 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 those 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.


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