6 N.C. 195 | N.C. | 1812
The last question submitted to this Court should be first considered: have the courts of North Carolina jurisdiction of the present suit? It is to be observed that the canal lies partly in Virginia, and partly in this State, and that the acts of Assembly incorporating the companies give no preference to the courts of either State. And it is to be further observed that the office of president and directors of the company has not by these acts been located. It therefore follows that the courts of each State have equal jurisdiction; but the court in either State in which a suit shall be first properly instituted does, by such priority, oust all other courts of jurisdiction during the pendency of such suit, and whilst any judgment, which may be regularly given in such suit, remains in force.
But the complainant has not applied to the proper jurisdiction. He ought to have applied to a court of common law for a mandamus to compel the officers of the company to register his deed, in case he be entitled to have it registered. 4 Burr., 1991; 1 Ld. Raym., 125; 1 Strange, 159; 2 id., 1180; Com. Dig. Mandamus, A; 2 Burr., 943; 2 Term, 2. It is not necessary to discuss this point, as the first and second points made in this case must be decided against the complainant. It is true that the acts of incorporation declare that the shares shall be considered real property, and it is also true that real property *150 may be sold under writs of fieri facias in this State. But it was not contemplated to make such shares liable to debts as real property. The object of the acts was to give to shares (197) the quality of being inheritable. This idea is strengthened by a clause in the acts which declares that there shall be no severance of a share. If the shares are to be considered real property as to the payment of debts, they must be viewed as savoring of and issuing from the land, in which case they have locality; and part of the land lying in Virginia is not within the jurisdiction of this Court, so that an execution could be levied on it; and we have just seen that that part which lies in this State cannot be sold, because there can be no severance of a share. If the shares be considered as unconnected with the land, although, as to some purposes, they be considered as real estate, yet, as to executions, they are choses inaction, and not the subject of seizure or sale. It may be aptly said of them, what Lord Ellenborough, in Scott v. Scholey, 8 Term, 467, said of equitable interests in terms for years, "that they had no locality attached to them, so as to render them more fitly the subject of execution and sale in one country than in another." Let the bill be
Dismissed.
(198)
