Anonymous, 1 N.C. 150, 1 Tay. 150 (1801)

Jan. 1801 · North Carolina Superior Court

1 N.C. 150, 1 Tay. 150

Anonymous.

If the nominal plaintiff resides out of the state, the defendant may be sued out of his own district, if the real plaintiff is an inhabitant of the district in which he sues.

ASSUMPSIT, on notes of hand. The defendant pleads in abatement of the writ, that when it was filed out he was an inhabitant of, and resident in, the district of Wilmington; that the plaintiff was an inhabitant of the state of Tennassee, and that the parties continue to reside in the said places respectively—wherefore the defendant faith he is not bound to answer the writ, out of the district of Wilmington. Replication,—that William M‘Kenzie, who lives in the county of Beaufort and district of Newbern, is the holder and owner of the notes on which the suit is brought, and the real plaintiff in the suit, making use of Blount’s name only for the purpose of recovering; and that he was, previously to the commencement of the suit, known and acknowledged by the defendant to be the real owner of the note, and entitled to the money due thereon; and was treated with by the defendant for the discharge of the notes.

Vide Winch versus Keeley, 1 Term Rep. 619.

Harris for the Plaintiff.

Woods for the Defendant.

Demurrer and joinder.

By

the Court.

There are cases where a court of law has taken notice of equities and trusts for the furtherance of justice; to enable a defendant to set-off a debt due from the person beneficially interested, though no party to the record, and for the purpose of avoiding the plea of bankruptcy.—I think the principle may be adopted with equal propriety to avoid a plea to the jurisdiction of the court, grounded on the act of assembly—For it stands admitted on these pleadings that Blount is but nominally the plaintiff.

Demurrer over-ruled.