Necessary parties.-Where lessors sue lessees for rent, and the defendants answer that other persons owned the land at the time of the lease and ever since, and have brought suit for the rent, such other persons are necessary parties to the action. McKesson v. Mendenhall, 64-286.

Interpleader in quo warranto to vacate a charter.-The court has power to allow a judgment creditor of a corporation to interplead in an action in the nature of a quo warranto, brought by the attorney general, to vacate the charter. State v. Simonton, 78-57.

Right to interplead lost by lapse of time. -In an action for the recovery of personal property, a third party claiming the same loses his right to be made a party to the suit by allowing three years to pass after notice of the action, before moving to interplead. Clemmons v. Hampton, 78-534

This section applies.-This section confers on the court the right to determine the opposing claims of execution creditors to the fund under its control, upon a motion in the cause in which the execution issued which produced the fund. Dewey v. White, 65–225; Fox v. Kline, 85-173.

This section does not apply. -The right of interpleader given by this section applies to an action properly constituted in court only, and not to rules or motions as to funds in a sheriff's hands, Bates v. Lilly, 65–232; Dewey v. White, 65-225; Milliken v. Fox, 84-107.

This section does not embrace a case where a sheriff has an execution in favor of one person and levies it upon property claimed by another than the defendant in the execution. In such case, the sheriff cannot require these persons to interplead. Dewey v. White, 65-225.

See, also, a general discussion, without particular adjudication, in regard to this section, in Thomas v. Kelly, 74-417.

Sec. 190. Actions to be tried where subject-matter situated. C. C. P., s. 66.

Actions for the following causes must be tried in the county in which the subject of the action, or some part

thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided in this Code:

Waiver of venue. -The venue can be waived by consent of parties. Leach v. Railroad, 65-486. See cases cited, 195, post.

(1) For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property;

Petition for dower.-A petition for dower must be filed in the county of the husband's last usual residence. Askew v. Bynum, 81-350.

Land lying in two counties.-Where the complaint in an action against several defendants to recover land, described the locus in quo as several tracts adjoining each other, and situated in the counties of Cumberland and Bladen, of which the defendants are in possession, and wrongfully withhold from the plaintiffs, under this allegation the superior court of either county had jurisdiction. Thames v. Jones, 97-121.

When chief object of action concerns real estate. When an action relating to real estate is brought in a county other than that in which the land is situated, the judge must, upon proper application made in apt time, direct its removal to the proper county. The fact that there are other questions to be determined in the action, does not alter the case when the chief purposes of the suit are to compel one defendant (trustee) to sell and another defendant to convey, lands situated in a county other than that in which the action is pending. Manufacturing Co. v. Brower,

105-440.

(2) For the partition of real property;

(3) For the foreclosure of a mortgage of real property;

Action by holder of notes given for purchase of land.-An action by the holder of notes, given for the purchase of land, against the purchaser and others, asking to be subrogated to the rights of the vendor in the contract for the sale of the land, is in effect an action "for the foreclosure of a mortgage of real estate," and must be tried in the county where the land is situated. Fraley v. Marsh, 68-160.

Action for breach of covenant to pay for improvements.-An action for breach of covenant in not paying for improvements made on lands by the mortgagors, does not fall under the provisions of this section. Phillips v. Holmes, 71–250.

(4) For the recovery of personal property [distrained for any cause.]

NOTE. The words "distrained for any cause" were stricken out of this subsection by chapter 219, Acts 1889.

The words "distrained for any cause," in this subsection do not apply to the seizure by the sheriff in the provisional remedy by claim and delivery; and the situation of the property in such actions in which claim and delivery is resorted to, does not regulate the place of trial of such actions. Smithdeal v. Wilkerson, 100-52.

This is now changed by statute chapter 219, Acts 1889, as before noted. Sec. 191. Actions to be tried where cause of action arose. C. C. P., s. 67.

Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial, in the cases provided in this Code:

(1) For the recovery of a penalty or forfeiture, imposed by statute; except that, when it is imposed for an offence committed on a sound, bay, river, or other body of water, situated in two or more counties, the action may be brought in any county bordering on such sound, bay, river, or other body of water, and opposite to the place where the offence was committed;

False return by sheriff. -An action against the sheriff of a county other than that from which the process issued, for making a false return, is properly brought in the courts of the county to which that process was returnable. Watson v. Mitchell, 108–364.

(2) Against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his command, or in his aid, shall do anything touching the duties of such officer.

Suits against county commissioners.—Suits against county commissioners must be brought in the county of which they are commissioners. Johnston v. Commissioners of Cleveland Co., 67-101; Alexander v. Commissioners of McDowell Co., 67-330; Jones v. Commissioners of Bladen Co., 69-412; Steele v. Commissioners of Rutherford Co., 70-137.

Action against cities and towns.-Cities and towns must be sued in the county in which they are located, and if suit is brought in another county, they have the right to have it removed. Jones v. Statesville, 97-86.

Obligors in an indemnifying bond.—The obligors on a bond to indemnify a sheriff against loss, etc., in seizing and selling property under execution, are not included in that class of persons who, by his command or in his aid shall do anything touching the duties of such office," and where an action was brought in the county of L, against such obligors - residing in the county of B, as aiders and abettors of the sheriff of the latter county in the unlawful seizure and conversion of goods under execution, it was not error to refuse to remove the cause to the county of B for trial. Harvey v. Brevard, 98-93.

Sec. 192. Actions to be tried where plaintiff or defendant resides. C. C. P., s. 68. 1868-'9, c. 59. 1868'9, c. 277, 8. 6.

In all other cases the action shall be tried in the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action; or if none of the defendants shall reside in the state, then in the county in which the plaintiffs, or any of them, shall reside; and if none of the parties shall reside within the state, then the same may be tried in any county which the plaintiff shall designate in his summons and complaint, subject, however, to the power of the court to change the place of trial, in the cases provided by statute.

Parties of record. The "parties" plaintiff and defendant in the contemplation of this section, are the parties of record, and no objection to the venue can be taken by pleading that a party for whose benefit an action is brought, lives in another county. Rankin v. Allison, 64–673.

Obligors on indemnifying bond.-An action brought in one county against the sheriff of another, and also against other parties (who had executed to him an indemnity bond), for the unlawful seizure and sale of goods under execution, if a nol. pros. is entered as to the sheriff, his co-defendants are not entitled to have the cause removed to the county of the sheriff for trial. Harvey v. Rich, 98-95.

Assignment "for collection."-A voluntary assignment, without consideration and for the benefit of the assigror, will not authorize the assignee to bring suit in a county where neither of the parties to the instrument reside. Abrams v. Cureton, 74-523.

Breach of covenant to pay for improvements.-An action for breach of covenant, in not paying for improvements made by mortgagors of real estate, must be brought in a county where some of the parties reside. Phillips v. Holmes, 71-250.

Sec. 193. Actions against executors and administrators, and upon official bonds. C. C. P., s. 68 (a). 1868-'9, c. 258, s. 1.

All actions upon official bonds, or against executors and administrators in their official capacity, shall be instituted in the county where the bonds shall have been given, if the principal or any of the sureties on the bond is in the county; if not, then in the plaintiff's county.

Personal representative. -An administrator or executor must be sued in the county in which he took out letters of administration or letters testamentary, provided he or any one of his sureties lives in that county,

whether he is sued on his bond or simply as administrator or executor. Stanley v. Mason, 69-1; Foy v. Morehead, 69-512; Bidwell v. King, 71-287.

A qualified as administrator of B, in Halifax county, and gave bond there. Afterwards A died in Northampton, and C qualified as his administratrix, in that county. C, administratrix, and Ď, one of the sureties on the bond of A, resided in Northampton, and were sued in Halifax county, on the bond of A, by a resident of Halifax. The action was properly brought in Halifax. Clark v. Peebles, 100-348.

Guardian bond.-A guardian bond is an official one, within the meaning of this section. Cloman v. Staton, 78-235.

Construction of will.-An action to construe a will must be brought in the county in which the testator was domiciled at his death and in which the will was admitted to probate. Devereux v. Devereux, 81-12. Sec. 194. Actions against foreign corporations; where and by whom brought. C. C. P., s. 361. 1876-27, c. 170.

An action against a corporation created by or under the laws of any other state, government or country, may be brought in the superior court of any county in which the cause of action arose, or in which it usually did business, or in which it has property, or in which the plaintiffs, or either of them, shall reside, in the following cases:

(1) By a resident of this state for any cause of action; (2) By a plaintiff, not a resident of this state, when the cause of action shall have risen or the subject of the action shall be situated within this state.

Removal to federal court.-A defendant is not entitled to have an action removed for trial from the state to the federal courts, under the acts of congress, unless the latter has original jurisdiction of the action. Foundry Co. v. Howland, 99-202.

When a proper case for removal is made out, no formal order to transfer the action is necessary-the state court will simply suspend further proceedings unless the federal court should remand the cause. Foundry Co. v. Howland, 99-202.

A non-resident defendant whose petition for removal of the cause to the United States court was denied on the ground of insufficient affidavit, cannot be again heard upon further application for removal-it has become res judicata. Herndon v. Insurance Co., 108-648.

The court might have allowed an amendment if made in apt time. Herndon v. Insurance Co., 108-648.

Sec. 195. Change of Place of trial. C. C. P., s. 69. R. C., c. 31, ss. 115-118; 1870-'1, c. 20. s. 1.

If the county designated for that purpose, in the summons and complaint, be not the proper county, the action