M'Gehee v. Draughon, 5 N.C. 260, 2 Car. L. Rep. 260 (1815)

July 1815 · Supreme Court of North Carolina

5 N.C. 260, 2 Car. L. Rep. 260

M’Gehee v. Draughon & Jordan.

This is an action on the case, brought by the plaintiff against the defendants, for negligently keeping and managing their boat, kept by them, at their licenced ferry, for the transportation of persons and property across Cape Fear river, by which negligence the plaintiff sustained an injury by loss of property; and has laid his damages at one hundred pounds and upwards. The defendants pleaded in abatement, that the plaintiff is an inhabitant of the county of Person—that they, the defendants, are inhabitants of the county of Cumberland, and that the matter in contest is not of the value of fifty pounds. The plaintiff demurred to the plea, and the defendants joined in demurrer.

The case was submitted.

Taylor, C. J.

delivered the opinion of the Court.

The plea in abatement cannot be supported—it is essentially defective both in form and substance. The words of the act of 1793, C. 18, are “ any debt or demand,” but the plea substitutes the words “ the matter in contest.” The plea is defective in substance, because the action arises ex delicto, and it is therefore impossible to ascertain the sum the plaintiff is entitled to, before the jury have assessed the damages. The sum demanded in the writ, is upwards of one hundred pounds, so that the plaintiff, living in a different district from the defendant, is prima facie entitled to sue where he lives, his demand being above that fixed by the act in such cases. But even if he should obtain a verdict for a less sum than fifty pounds, it would seem to be straining the interpretation of the act, to suffer the jurisdiction of the Courts to depend upon a rule so uncertain and capricious, as the amount of damages in cases of tort. Let the plea be overruled and a respondeas ouster awarded.