#### RICHARD H. MOSELEY vs. CHARLES G. HUNTER.

June 1843

A plea to the jurisdiction of tho Superior Court of W., which, after setting forth that the plaintiff is not an inhabitant of the county of W. hut is inhabitant of the county of H., alleges only “ that the defendant was an inhabitant of' the county of E. and not an inhabitant of any other county than the county of E.,” is bad, because it does not expressly aver that the' defendant did not reside in the county of W., but only states that fact in an argumentative way.

A plea to the jurisdiction of the' court properly concludes with the prayer, “ whether the court will or ought to take further cognizance of the plea aforesaid.”

Appeal from the Superior Court of Law of Warren County, at Spring Term, 1843, his Honor Judge Manly presiding.

This was an action on the case, in which' the writ was directed to the sheriff of Edgcomfee county, where it was executed, and returnable to the Superior Court of Law of Warren county, at the Fall Term, 1842. At the Term, to which the writ was returned, the-defendant filed the following pleay viz:

And the said Charles G. Hunter, in his own proper person comes and defends the wrong and injury, &c. and says he ought not to be compelled to answer the said original writ, because he says that the said' Richard- H. Moseley was at the time of suing out the said writ, and has been ever since, and is now an inhabitant of the county of Halifax, and at the time aforesaid resided therein, and that the said Richard H. Moseley was not, at the time of suing out the said writ, nor *544any time since, ail inhabitant of the county of Warren, nor resided therein, and because the said Charles G. Hunter further says, that he, the said Charles G. Hunter, was at the . , . ., , , , , . time of suing out the said writ, and always has been,up to this time, an inhabitant of the county of Edgecomb, and resided therein, and was not at the time of suing out the said writ, nor at any time since, an inhabitant of any other county than the said county of Edgecomb, and this he is ready to verify; whereupon he prays judgment whether, the court will further take cognizance of the said suit.

To which plea the plaintiff demurred as follows, viz:

. And the said Richard, as to the said plea of the said Charles by him above pleaded, says, that the said plea and the matters therein contained, in the manner and form as the same are above pleaded and set forth, are not sufficient in law to abate the said suit of the said Richard, nor is. the said Richard under any necessity, or in any wise bound by the law of the land to answer thereto, and this he, the said Richard, is ready to verify: Wherefore, he prays judgment, and that the said Charles may answer over to the aforesaid declaration against'him. And for causes of demurrer in law, he, the said Richard, assigns and shews to the court here'as follows, to-wit: for that the said Charles, in the conclusion of the said plea, prays judgment whether the Court will further take cognizance of the said suit, whereas the matters in the said plea stated, if true, and well pleaded so as to have any effect in law, are sufficient to shew that the said court had and could not take any cognizance whatever of the same— lor that the commencement of the said plea insists, that the said Charles ought not to be compelled to answer the writ, and the conclusion praying judgment if the Court will further take cognizance, &c. admits that the said court had cognizance thereof, and the said Charles was once compelled to answer the same — for that the commencement of the said plea is inconsistent with and repugnant to the conclusion thereof — for that the said Charles in the commencement of *545the said plea says, that lie ought not to be compelled to swer the said writ, whereas, the matters in the said plea alleged being designed to oust the court of all jurisdiction of , , , , , . , the suit, no such commencement should or ought to have been made or introduced in the said plea' — -for that the said plea doth not directly deny that the said Charles resided in Warren aforesaid, at the time1 of the commencement of the suit, or at any time since, but only by way of inference and argument — and doth not directly aver or allege any matter as to his residence in Warren aforesaid, on- which issue- can be taken or tendered — for that the said plea doth not directly and expressly allege that the'said Richard resided m the county of Halifax, and did not reside.in the county of Warren at the time of the plea being pleaded — for that the said plea doth not directly deny that the said Charles resided in Warren at the time of suing out the writ, or at' any time since — -nor doth the said plea allege that the said residence of the said Charles in Edgecomb was his only residence — . for that the said plea is uncertain and double in this, that the'said'plea a-vers that the said Richard was- an inhabitant of and resided .in Halifax, and was not an inhabitant of or resided in Warren — for that the said plea denies that the said Charles was an inhabitant of any other county but-E'dgecomb, but doth not deny that he resided in any other county,upon which no certain ormaterial issue can betaken or tendered— and for- that tiie said plea is in other respects Uncertain, double, argumentative, insufficient and informal,

■ The deiendant joined in demurrer, and the court upon the-hearing. thereof sustained the demurrer, over-ruled the plea and directed the defendant to answer over. From this order and decision of the court, the defendant, by leave, appealed to the Supreme Court.

Badger and W. tí. Haywood for the plaintiff.-

No counsel in this court for the deiendant.

*546Ruffin, C. J.

This being a plea to the jurisdiction, it properly concludes, according the precedents, with the prayer “ whether the court will or ought to takq further cognizance of the plea aforesaid.” In that respect it differs from those that are, strictly speaking, pleas in abatement for matter existing at the time of action brought. Com. Dig. Abatement, D. 2. 1 Went. Pl. 49. Stephen’s Pl. 46, 394.

The plea however, is bad-, as we think, in not traversing in terms,- the residence of the defendant in Warren, By the statute, Rev. St. c. 31, s. 39, this action,.which is case, may be brought in the court of the county in which- both parties reside, or, where they live in different counties; in either county, at the option of the plaintiff. The action, therefore,supposes that both or one of the parties lived in Warren, and it may be maintained there, if either of the parties did reside there. Consequently, it is the material part and point of a plea to the jurisdiction, to-deny that fact, and-so put it in issue. Whatever may be stated touching, residence in another county, is only matter of inducement. Issue cannot he taken on it, since the jurisdiction does not depend on the residence of the plaintiff in-Halifax,, or of'the defendant in Edgecomb, but of one of the other of them in Warren, and one may have fixed places of residence in more than one county, as is recognized in the act concerning executors and administrators, Rev. St. c. 46, s. 1. It is, however, a necessary part of the plea, (although it' cannot he traversed in the replication',-) in- compliance with another rule of pleading, namely, that the' plea must give the plaintiff a better writ, and tell him in what court he may properly sue. — - This plea, therefore, is-right as respects the plaintiff’s residence. It states, that he resides in Halifax, and then, “ that the said Richard was not at, &c. an inhabitant of the county of Warren, nor resided therein.” So, the plea sets out the résidence of the defendant in Edgecomb properly enough— but it omits to traverse the defendant’s residence in Warren, by averring that the defendant did not reside in Warren. Instead of that, the plea is, that the defendant “ was not an inhabitant of any other county than the said county of *547Edgecomb,” which, .no doubt, was intended as a traverse of a residence in Warren. Bat .that method of taking it is a departure from the established rules of pleading, and cannot therefore be allowed. The plaintiff could not take issue on this part of the plea, according to its terms, by replying that the defendant did live in a county other than Edgecomb, because by so doing he would admit, that he, the plaintiff, did not live in Warren, and then, if it should be found, that the defendant did live in some other county besides Edgecomb, it would not determine the question of jurisdiction, for the county of the party’s residence might be any other county, as well as Warren. Therefore, the plaintiff would be under ■the necessity of replying by way of direct averment, what in bringing the action was before supposed, namely, that the defendant did live in Warren, so as to draw the defendant to an issue by a rejoinder, that he did not live in -that comity. It is manifest, therefore, that the denial of the defendant’s residence in Warren, contained in the plea, is argumentative, and not, as it ought to be, in an absolute form, and is therefore defective. It is not bad, because it precludes the plaintiff from taking a material issue by a proper replication^ but it is bad, because the defendant has so pleaded as to prevent the issue being taken in that orderly mode and proper stage of the pleadings, which the law requires. The plea tends to perplex and draw out the pleadings to an unnecessary prolixity, by compelling the plaintiff to reply matter already supposed, for the purpose of drawing back the defendant to an issue, which is indispensable in the cause, and which the defendant had it in his power at once to tender, by a direct negative in his plea of a residence in Warren, and would not. That this absolute form of allegation or traverse, as to the material fact in the plea, is necessary, is manifest from the inspection of any record or book of precedents.— Thus, one was sued by the addition of “ broker,” and pleaded in abatement. The plea begins by stating, that the defendant is a merchant, and then proceeds, “ that he, the defendant, on, &c. was not or at, &c. has been a broker, as by the said writ is above supposed.” To that, without taking *548any notice of the inducement, that the defendant was a merchant, the replication is, “ that the said defendant, on, &c. was, &c. a broker, as by the said writ is above supposed, and this he prays may be enquired, &c.” 1 Went. Pl. 3. In like manner a plea of n-on-joiuder of a partner states, that the supposed promises were made as well by A. B. as the said C. D. the defendant, and then traverses the sole promise of the defendant by adding, “ and not by the said C. D. alone” which said A. B. is still living, &c. and the replication takes issue by saying, l! that the said promises were made by the said C. D. alone, in manner, &c. and this he prays, &c.” ' 1 Went. Pl. 16, 17. It takes no notice of A. B., whose name was only given to inform the plaintiff, against whom he should bring suit the next time, if that should be abated.

PjiR. CURIAJVI. Judgment affirmed.