69 N.C. 412 | N.C. | 1873
Lead Opinion
The suit was brought to the Spring Term, 1873, of the Court of Cumberland county, at which term the plaintiff, a *413 resident of that county, filed his complaint, seeking the recovery of a bond given by the chairman of the late Court of Pleas and Quarter Sessions of Bladen county, in December, 1864, for $16,000.
Defendants appeared by counsel and moved to dismiss the suit for want of jurisdiction, contending that the same should have been brought to the Superior Court of Bladen. His Honor being of that opinion, allowed the motion and dismissed the suit.
The plaintiff excepted to this ruling of the Court, because, 1st, the action being for a debt only, plaintiff can sue in the county where he resides; and 2d, because his Honor erred in dismissing the action. If the county of Cumberland is not the proper county, he ought only to have ordered a change of venue to Bladen county, and from the judgment of his Honor, plaintiff appealed.
C. C. P., sec. 67, provides that actions against public officers shall be brought in the county where the cause of action arose. And we have already said in two cases Johnson v. Commissioners of Cleaveland,
That is the only point in this case.
There is no error.
Addendum
dissentinte. I regret that I cannot agree with my learned associates, and as the question is of some importance, I will briefly give my reason, C. C. P., sec. 67 requires the action to be brought where the cause of action arose. The question is, where did it arise? The contract was made in Bladen; it was to pay money, not at any particular place, but generally, and on a certain day. In such a case I think the principle is settled, that the debtor is bound to seek the creditor if he lives within the State, and pay him where he may be. The failure to pay is the cause of action. It is true that in one sense the making of the note is the cause of action, as without it no cause of action could ever have arisen. But it is equally true that if General McKay had never made the bequest which caused the county to need to *416 borrow the money, the note sued on would never have been given. The law looks only to the proximate cause, for if it regards any beyond that, it undertakes to follow out an endless chain with innumerable branches.
The proximate, and in a legal sense, the cause of action was the breach of the contract, which occurred in Cumberland where the creditor lived, and where it was the duty of the debtor to make the payment. I know of no reason of public convenience or policy which puts municipal corporations upon a different footing from individual debtors, in respect to the duty of seeking the creditor. If they choose, they can make their notes payable at their own county town. But when the contract is to pay generally, it must be governed by the ordinary law.
We have no right to insert a stipulation which the parties did not.
PER CURIAM. Judgment affirmed.
