Draper v. Kirkland , 38 Tenn. 260 ( 1858 )

Weight, J.,

delivered the opinion of the Court.

This was an action of ejectment in the Circuit Court of Putnam county; and the writ and declaration were executed and served upon defendant in that county, where the cause was tried.- But the land in dispute, claimed and occupied by the defendant, lies entirely within the county of DeKalb, but is embraced within a grant of 5,000 acres to the plaintiffs, which lies partly in both of those counties.

The Circuit Judge held the suit could not be maintained in Putnam county. In this there is no error.

At the common law this action is in its nature local, and must be brought in the county where the land lies. If commenced in the wrong- county, the defendant may avail himself of it on the trial. Hathorne v. Haines, 1 Greenleaf’s Rep., 238.

This rule of the common law, as applicable to this case, is unchanged. The act of 1848, ch. 173, (Acts 1847-48, page 280,) only applies where the tract of land in dispute lies in two or more counties, and can have no application to a case like this.

The oath taken by the defendant in forma pauperis, as a substitute for the bond for costs, upon being permitted to defend the action, is a substantial compliance with the law; and the Circuit Judge decided right in so holding. 2 Meigs’ Dig., 826.

The judgment is affirmed.