I concur in the judgment of reversal. I think, however, that the statute of 1858 authorizes suit to be brought in any county designated in the complaint, when the residence of the defendant is unknown. But this provision must receive a reasonable construction. A willful or careless ignorance of the residence of the defendant does not put it in the power of the plaintiff to sue him in any county of the State, however remote from his residence; for if this were so, the effect of the rule would be practically to repeal this provision requiring suit to be brought in the county of the residence of defendant. It would be putting it in the power of the plaintiff, by keeping ignorant of the facts, or feigning ignorance, to sue where he pleased, and thus fraud would be encouraged and oppression practiced. To resist the application of the defendant, the plaintiff should have shown that he used all proper diligence to ascertain the residence of defendant before suit, and failed. He does not show this by his affidavit, or otherwise.
I agree in the other views of the Chief Justice, except that as the construction of the statute presents a novel question, and the practice is unsettled, I think the parties should have an opportunity of fully presenting the merits of the motion on the return of the cause ; and for that purpose it is remanded.