Covill v. Moffitt, 52 N.C. 381, 7 Jones 381 (1860)

June 1860 · Supreme Court of North Carolina
52 N.C. 381, 7 Jones 381
W. R. COVILL v. THOMAS MOFFITT

W. R. COVILL v. THOMAS MOFFITT.

The act Eev. Code, ch. 31 — sec. 37, appointing the venue for transitory actions, makes no provision for the case of a resident plaintiff and a non-resident defendant, and it was Held, therefore, that the case remains as at common law, which allows the plaintiff to sue in any county, subject to the power of the Court to change the venue according to' certain rules governing its course.

This was AN actiok ON the oase, fried before Shepherd, J., at the last Spring Term of Brunswick Superior Court.

On file return of the writ, the defendant pleaded an abatement; ihat he is a citizen of the county of Monmouth, in the State of New Jersey, and that the-plaintiff is, and was, at the time of bringing suit, a citizen of the county of New Hanover in this State. T©' this plea the plaintiff demurred, and'the Court below sustained the demurrer, and awarded a respondeat ouster, from which judgment the defendant appealed to this Court.

No counsel appeared for the plaintiff in- this Court.

London, for the defendant,

Manly, J.

The Revised Obde, ch. 31., see. 37, appointing the venue of transitory actions, is in restraint of the common law, as, without such express enactment, the plaintiff might make choice of a venue anjv where within the State.

It will be perceived, by reference to the section in question, that provision is made for the case of a non-resident plaintiff, the defendant being- a resident, but no'provision is made for the case of a resident plaintiff, the defendant being a non-resident, and, therefore, as we concluded the case is as at common law. It might have been brought to any county, subject to the power of the Court to- change th-e- venue according to the course of the Court.

In Tidd!s Practice, 1 vol. 371, it is said “ the place of transitory actions is never material, except when by particular acts of Parliament it is made so.”

*382We think, therefore, the judgment of the Superior Court should be affirmed. The demurrer must be sustained, and the defendant answer over.

Per Curiam,

Judgment affirmed.