
    
      Comstock & Co. vs. Alexander Alexander.
    
    1. Assumpsit brought in the City Court of Charleston — non assumpsit pleaded, and the fact admitted that defendant resides without the City, not within the jurisdiction. Plaintiff non-suited, and the non-suit sustained.
    2. If a defendant, sued in the superior jurisdiction, relies upon a privilege or residence within an inferior jurisdiction, exempting him from suit in the former, the objection can only be made on half defence and in person, as full defence, or appearance by attorney, would waive the objection. The want of jurisdiction, in such case, is in the nature of an abatement of the writ, and must be strictly pleaded.
    3. But an inferior jurisdiction must, by the record, shew itself to have jurisdiction, and the general rule is, that the plaintiff must prove his allegations.
    4. The only exception is, where the plaintiff claims in a particular character, then the defendant’s plea of the general issue admits that.
    5. The cases of the Planters’ and Mechanics’ Bank vs. Cowing and Wagner, 2 Nott & McCord, 438, and Overstreet vs. Brown, 4 McCord, 79, only allege, that after verdict, the objection comes too late; for in law it is then supposed to have been found that defendant lived in the jurisdiction.
    
      Before his Hon. Judge King, Recorder of the City Court of Charleston.
    
    This was an action of assumpsit — plea, the general issue, non-assumpsit.
    In this case it was admitted that the defendant has long, carried on business in a shop in Broad-street, in the city of Charleston. But it was also admitted that he resides without the city, and not within the jurisdiction of the city court. The cause of action was admitted, and the counsel for the defendant, on the general issue, objected that the action could not be maintained in this court, because the defendant was an inhabitant of this State not within the jurisdiction of the court.
    The counsel for the plaintiffs, in an able and ingenious argument, contended that after pleading to the merits, the defendant could not object to the jurisdiction — that a plea to the jurisdiction was a dilatory plea, and not entitled to the favor of the court; that as the jurisdiction of the court was sufficiently averred in the pleadings, had the defend ant intended to dispute the allegation, he ought to have taken issue upon it; and that as he had failed to do so, according to the rules of pleading he was then precluded, and the plaintiffs were entitled to recover.
    It is a well settled rule, that a plea to the jurisdiction must be pleaded before the general issue, and ought to be by the defendant, in person, pointing out the court in which the plaintiff may sue. Tidd. 586, Bac. Pleas and Plead. E. sect. 2, and Lord Mansfield, in the great case of Mostyn vs. Fabrigeas, 1 Cowp. 161, 172, says, nothing is more clear than that if the court has not a general jurisdiction of the subject matter, he (the defendant) must plead to the jurisdiction, and cannot take advantage of it under the general issue. Now it would seem to be a legal inference, juris et de jure, that what must be pleaded in abatement, cannot be taken advantage of, on the general issue, and therefore an allegation of jurisdiction uncontroverted by a plea to it, need not be proved.
    This seems consistent with the general principles of law, and with the decisions of our courts on analogous points. In Napier vs. Mitchell, 2 N. & McC. 64, that in an action by an administrator, where the defendant pleaded non est factum, the plaintiff could not be required to produce his letters of administration, and the defendant was confined to his defence on his plea. In Edioards vs. Ford, 2 Bail. 461, on the general issue, an infant who had sued by a guardian, was not required to prove that the guardian was duly appointed ; and in Newman vs. Murphy, 1 Hill, 153, a sole-trader, who, for conformity, had joined her husband in the suit, was not on the general issue held bound to prove that she was a sole trader.
    Had the court then considered this an open question, it would have sustained the views taken of it by the plaintiff’s counsel, and would have considered that the question of jurisdiction could not be made in this case; that the defendant, on the pleadings, had admitted the jurisdiction, and was precluded from calling it in question. But it is within the knowledge of the court, that from its first organization, this question has been made on the general issue, and the plaintiff required to prove the averment of jurisdiction, and if he failed in such proof as might not fairly be left to the consideration of the jury, and much more if, as in this case, it was proved that the court had not jurisdiction, he was non-suited. The court felt bound by this custom of the court and ordered a nonsuit.
    The plaintiff now made a motion in the Court of Appeals, to set aside the non-suit ordered, on the following ground:
    That evidence of the non-residence of defendant, within the corporate limits of the city of Charleston, was inadmissible after non-assumpsit pleaded and issue joined, there being no plea to the jurisdiction.
    
      Northrop & Walker, for the motion. Ashby, contra.
   Curia, per

Q’Neall, J.

The city court of Charleston is limited in jurisdiction, both as to the amount of the demand, and the residence of the defendant.

It hence follows, that it is an inferior court; and whenever the. want of jurisdiction appears, it cannot proceed. The obstacle may be made plain by reference to what constantly occurs in the superior court. A defendant is sued on a note, supposed to be more than $20. On the trial, it appears that less than that sum is due; as by the Act exclusive jurisdiction to that sum is given to magistrates, a non-suit, for want of jurisdiction, is the inevitable consequence. In a court of limited jurisdiction, whether it is necessary to prove, as well as allege, the facts necessary to give jurisdiction, it is unnecessary in this case to decide. For the fact negativing the jurisdiction was admitted. If the objection argued was intended to be made, the objection should have been urged to the exclusion of the fact that defendant did not live within the city.

But I incline to the opinion, that the objection argued could not prevail. For the rule suggested by the Recorder, and maintained by the plaintiff’s counsel, applies to the superior jurisdiction. In it, if the defendant relies upon a privilege, or residence, within an inferior jurisdiction, which exempts him from suit in the superior jurisdiction, then such an objection to the maintenance of the suit can only be made on half defence and in person. For full defence, or appearance by attorney, would waive the objection. The reason is because the jurisdiction's general, and the want of jurisdiction is in the nature of an abatement of the writ, and must be strictly pleaded. But an inferior jurisdiction must, by the record, shew itself to have jurisdiction ; and the general yule is, that the plaintiff must prove his allegations.

The only exception is where the plaintiff claims in. a particular character, then the defendant’s plea of the general issue admits that. But here, the jurisdiction is a precedent fact to every thing else, and must be proved. There is nothing in the cases of the Planters’ and Mechanics' Bank vs. Cowing & Wagner, 2 N. & Mc. 438, or Overstre t vs. Brown, 4th McC. 79, which can lead to any other conclusion. They only allege that after verdict the objection comes too late; and that is because in law it is then supposed to have been proved that defendant lived in the jurisdiction. The motion is dismissed.

Richardson, Evans, Butler and Frost, JJ. concurred.  