Court of Errors and Appeals, Knoxville.
May Term, 1817.
It is a good plea in abatement to a bill in chancery that the defendant resides in a different district from that in which the bill is filed, and that the process was served upon him in the county of his residence, although injunction be sought and obtained against an execution issued to the county in which the bill is filed. (Acc. Cooke, 87 and 339, which see; 4 Y., 81. Changed by statute, Code, 4311.)
Per Curiam.
Butler had a note on Cain, which he assigned to Dillon, who sued Gain at law, and
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recovered. Dillon and Butler dying, a bill in equity for an injunction was filed, and the injunction was granted. The bill alleges a failure of the consideration, for which the note was given. The defendants pleaded their own residence and that of their intestates in the county of Davidson, the bill in equity against them being filed in this court.
The decision in the case of Newnan v. Stewart, also in the case of Childress v. Perkins, Cooke, 87, is upon this point. That was an injunction bill; Newnan was compelled to renew his suit in the first circuit. The case in 1 Cranch, 288, is opposed to this decision, upon the ground, perhaps, that a circuit court of Virginia could not well punish the breach of an injunction issued to one who had a judgment at Law in this State, and should disobey it by taking out execution. It is best for the sake of uniformity to follow our own decisions, founded upon our own acts of assembly.
Abate the bill.