M'Gehee v. Draughon

2 N.C. 260

• Court: Supreme Court of North Carolina
• Decided: July 15, 1815
• Status: Published

Opinion

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.