Thomas Philips v. John M'Donald

WASHINGTON COUNTY, April Term, 1792. Thomas Philips v. John M'Donald. 1 St. L. 193. 1 St. L. 204, 227 2 8 238 248 271, 273 389,423.46l 2St L 4 5, 12, 73, 84, &c. old editions. AN action of debt for the penalty, on the act of assembly against usury, had been brought before a justice of the peace. The justice having given judgment for the plaintiff, he appealed. It was agreed, by the counsel on both sides, “that, if the opinion of the court were, that the justice had jurisdiction, the defendant should plead to the merits ; and that if the justice had not jurisdiction, the plaintiff should be nonsuited.” Ross for the defendant. The act against usury, being a penal law, must be strictly pursued. A justice of the peace is no court of record, but an exception out of binary jurisdictions. The acts of assembly distinguish between courts of record, and justices of the peace. If a penalty be declared against a particular conduct, there must be a conviction by a jury, before the penalty be recovered. The words, “ essoign, protection, wager of law,” apply only to proceedings in courts of record. Only the four courts of Westminster are courts of record, for such a purpose as this. No suit for a penalty can be brought in England, in the Quarter Sessions, or Stannary courts, or courts of Sewers, or courts of Conscience, or courts Leet, though courts of Record diverso intuitu. 2 Hawk 301.-2, 381, § 25, c. 5 § 23, Doug. 1, &e. 6 Co. 19, Cro. El. 737.2Ld. Ray, 872 1 Bac Abr. 40 2 T. Rep.274. 3 T.Rep.362. 3St. L. 536. Note.—This case was never mentioned again. I believe the plaintiff gave it up. See Gregory v. Blashford, Barnabee v. Goodale, Curlewes v. Dudley, Farren v. Williams, White v. Boot, Leigh v. Kent. But the act of 19 of April, 1794, c. 234, §. 10, has settled this question, on this point, for the future, and given justices jurisdiction in cases of penalties for usury. Brackenridge, for the plaintiff. The English law cited, applies only to criminal prosecutions. The statute of usury is to be considered with those giving the justices jurisdiction of 40s. 5l. 10l. "All debts” includes this ; for it is not among the excepted cases, “ Rent,” &c.—The defendant may appeal, and have a jury trial. The law intends a benefit ; and it ought to be given in the easiest manner possible. Usury is a political evil, a forestalling of money, and oppressive to people in distress. Ross, in reply. Justices have jurisdiction only in contracts express or implied ; never in torts. There is no appeal under 40s.. Wherever jurisdiction over penalties is given to justices, it is given in express words. [MAJORITY] Cur. adv. vult.