Thomas v. Winters, 4 Blackf. 161

Dewey, J. Thomas sued Winters before a justice of the peace on a book account, and recovered judgment against him by default. Winters appealed to the Circuit Court. In that Court, on the trial of the cause, Thomas proved by the admission of Winters that the account was correct and justly due to him. Winters proved, that the summons issued by the justice was served upon him out of the township in which it was issued; that he, Winters, resided in the township where it was served, and where the debt was contracted; and that there was an acting and competent justice of the peace in that township at the time.

To the admission of this proof Thomas objected; but the Circuit Court heard and considered it; and dismissed the cause for want of jurisdiction. There was no plea put in by Winters; but he was entitled to the benefit of the general issue without pleading it. Rev. Code, 1831, p. 301 . The only question presented by this record is,—was the above evidence on the part of the defendant legally admitted under the general issue? There can be no doubt, that had the facts disclosed in evidence been pleaded before the justice and proved, they would have divested him of of the cause. Rev. Code, 1831, p. 299.

If legally admitted in evidence by the Circuit Court under the general issue, they produced the proper result . E. M. Huntington, for the plaintiff. S. B. Gookins, for the defendant. It is generally true, that in suits in Courts of general jurisdiction, if an objection to the jurisdiction exist, which does not appear upon the record, it can only be adduced, in the form of a dilatory 'plea, and is lost to the party wishing to use it, if he plead to the merits. But this.rule, even in such Courts, is not without exceptions. If the action be local, or the remedy be confined to another Court by

an act of legislation, the plaintiff will be non suit by a disclosure of the facts showing want of jurisdiction under the general issue. Bac. Abr. Pleas, E, 1.—Taylor v. Blair, 3 Term Rep. 453.—Doulson v. Matthews, 4 Term Rep. 503.—Parker v. Elding, 1 East, 352.—1 Saund. Plead. 1.—Rex v. Johnson, 6 East, 583. In inferior Courts the rule is different. In them, want of jurisdiction can be takeiradvantage of without pleading it. It may be disclosed in evidence under the general issue; and when disclosed will be fatal to the claim of a plaintiff. Bac. Abr. Pleas, E, 1.—1 Chitt. Pl. 425, n. b. Ib. 428.—-Bac. Abr.

Courts, D, 4.—1 Saund. Pl. 1.

By our statute, no person is “bound to answer to any summons, capias, or other process issued by a justice, in civil cases, in any other township than the one in which he actually resides, or where the debt was contracted, or the cause of action accrued, or where the defendant may be found, unless there shall be no justice who can legally issue such summons, capias, or othe¥“ process.” The evidence contained in the record shows that the defendant, Winters, did not live in the township where the process issued, that the debt was not contracted, nor he found there; and it shows that there was an acting and competent justice of the peace in the township in which he did live, and in which the process was served.

The justice who tried the cause, therefore, clearly had no jurisdiction over it; and as -he possessed an inferior and limited jurisdiction only, the .Circuit Court acted correctly in hearing the evidence and dismissing the action. Per Curiam. The judgment is affirmed with costs. To be certified, &c. Accord. Rev. Stat. 1838, p. 368. After an appeal to the Circuit Court, the suit shall not bo dismissed because it was commenced out of the proper township, unless the objection have been made, on the hearing, before the justice. Rev. Stat. 1838, p, 366.