Read v. Coker

1 Stew. 22

Opinion

JUDGE CRENSHAW

delivered the opinion of the Court.

This was an action before a justice of the peace, by Read against Coker, in Dallas county. The justice gave judgement for the plaintiff; Coker appealed to the County Court, and there plead in abatement that at the com- snencement of tbe suit, he was, and yet is a resident freeholder of tbe county of Bibb. The plaintiff demurred. The County Court overruled the demurrer and gave judgement for the defendant. The plaintiff appealed to the Circuit Court, and assigned the above matters as errors. The Circuit Court affirmed the judgement of the County Court, and the assignments of error now present the inquiry, was the Circuit Court right ?

By the 12th section of the act of 1807,

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a no freeholder shall be sued out of the county of this permanent residence. By the 8th section of an act of 1819,b any person may be sued in the county where he may be found, if oath be made before the cleric or justice of the peace, that he has gone from the county of his residence to avoid the service of process. If there was any doubt as to the application of the act of 1807, to proceedings of a justice of the peace, it must be removed by the above section of the act of 1819- which necessarily implies that if oath be not so made, the person to whom the privilege had been extended by the first statute, shall not be sued out of the county of his residence. The act of 1819, in this respect applies alike to all courts and all process by which suits may he commenced. The reason for the privilege as to a suit before a justice is the same as in the case of a suit before a Court of record. Let the judgement be affirmed.

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