His Honor, Judge Manly, before whom the case was tried at NEW HANOVER Superior Court, at its Special Term, in 1852, gave judgment overruling the demurrer, and sustaining the plea; from which the plaintiff prayed an appeal to the Supreme Court, and his Honor disallowing the same, on the ground that the plaintiff sued in forma pauperis, the case was brought up to this Court by certiorari at last June Term. 1. That the plea does not deny the defendant's residence in the county of New Hanover, except arguendo, and is bad. (Moseley v. Hunter,25 N.C. 543.)
2. The plea does not give a better writ. This Court cannot judicially know that there are courts of common-law jurisdiction in Nova Scotia.
3. Nor does it set out that the cause of action accrued beyond the jurisdiction of the United States. He further argued that foreigners may sue in our courts on contracts made abroad. (Story's Confl. Laws, chap. 14, sections 538, 542, 554; De la Vego v. Vianna, 1 Barn. and Adolph., 284.) 1. Have our courts jurisdiction, where the plaintiff and defendant are aliens, and the contract was made abroad? This question is raised by the plea and demurrer. Gardner v. Thomas, 14 John. Rep., 134; Johnson v.Dalton, 1 Cow. Rep., 543; Boutlett v. Wyman, 14 John., *Page 240 260; Hallett v. Lamothe, 7 N.C. 279; Martin v. Hunter's Lessee, 1 Wheat., 334.) He also cited Acts of Congress, 1790, chap. 50, sec. 6.
2. As to the right of plaintiff to certiorari, he cited Estes v.Hairston, 12 N.C. 354; Baker v. Halsted, ante, 41. We are confined by the record to the single question of the sufficiency of the plea in abatement. It is fatally defective, and does not present the question intended. There is no allegation that the contract was made in a foreign country. For aught that appears upon the face of the record, the contract was made in this State; and the plea presents the question, can one foreigner sue another in the courts of this State, upon a contract for "work and labor done," entered into in this State? The judge in the court below sends up a statement of facts; but there was no issue joined upon the facts, and the statement of his Honor has no bearing on the case, as presented by the record.
The opinion will be certified, and the court below will enter judgmentrespondeat ouster.
PER CURIAM. Judgment reversed.
Cited: Miller v. Black, 47 N.C. 343.
(252)