On the return of the writ, the defendant pleaded an abatement, that he is a citizen of the county of Monmouth, New Jersey, and that the plaintiff is, and was at the time of bringing suit, a citizen of the county of New Hanover, in this State. To this plea the plaintiff demurred, and the court below sustained the demurrer, and awarded a respondeat ouster, from which judgment the defendant appealed to this Court. Revised Code, ch. 31, sec. 37, appointing the venue of transitory actions, is in restraint of the common law, as, without such express enactment, the plaintiff might make a choice of a venue anywhere within the State.

It will be perceived, by reference to the section in question, that provision is made for the case of a nonresident plaintiff, the defendant being a resident, but no provision is made for the case of a resident plaintiff, the defendant being a nonresident, and, therefore, as we concluded, the case is at common law. It might have been brought to any county, subject to the power of the court to change the venue according to the course of the court. *Page 295

In 1 Tidd Pr., 371, it is said: "The place of transitory actions is never material, except when by particular acts of Parliament it is made so."

The demurrer must be sustained, and the defendant answer over (382)

PER CURIAM. Affirmed.