Park v. . Morrison

4 N.C. 155

• Court: Supreme Court of North Carolina
• Decided: January 5, 1814
• Status: Published

Opinion

All general rules must be departed from in cases of necessity; they are formed to meet ordinary cases only, but in extraordinary ones we must resort to some other rule. Of the common law it is a general rule that where two or more persons are liable on a joint contract, they must be made defendants and brought into court; but the plaintiff is excused for omitting to do so by showing its impossibility. Accordingly, the course in England is to proceed to outlawry, and, in this State, to the pluries writ. So if some of the executors reside in a foreign country, those who live here may be sued; and the same rule is applicable to defendants in equity. We can see no difference (156) in principle between those cases and the case of one executor residing without the jurisdiction of that tribunal which has cognizance of the cause. We must, in this case, either depart from the general rule or declare that the plaintiff has no remedy for the demand, being of a sum within the jurisdiction of a magistrate, whose warrant runs not beyond the limits of his county. The defendants, by remaining in different counties, may, forever, prevent a trial. We are, therefore, very clearly of opinion that the plea should be overruled, and the defendants answer over.