But
took a distinction between the contract and remedy: and observed, that the contract remained the same notwithftanding this act: and that the remedy only was extended.
And Sitgreaves, J. accordante.
A respondeas ouster was awarded.
Palyart v. Goulding, 1 N.C. 78, 1 Mart. 78 (1792)
June 1792
·
United States Circuit Court for the District of North Carolina
1 N.C. 78, 1 Mart. 78
June Term, 1792.
PALYART vs. GOULDING.
The defendant and his two brothers carried on business as merchants, in the state of Maryland, under the firm of John Goulding, and brothers, and in the year 1791, gave the plaintiff the promissory note, on which this action was brought, for a debt the said partnership, signed John Goulding, & Brothers, the stile of the firm. The defendant (being the only partner in this state) was sued alone: he pleaded in abatement to the action, that this contract was entered into, in the state of Maryland, and that the other partners who were living, and not named, ought to be made defendants. To this plea there was a general demurrer.
Graham, in support of the demurrer, relied wholly on the fifth section of the act of Assembly of this state. 1789, 57, 688.
Woods and Martin, contended that this case came within the rule of lex loci, and that to allow this act the operation insisted on for the plaintiff, would substantially alter the contract.