Phelps v. Garrow

The Vice-Chancellor : As between the complainants and defendant, the cause and matter of controversy must be deemed to have arisen at Auburn—there the defendant resides, and there it was that he entered into what the complainants insist was a suretyship for Smith, by endorsing the draft, and there also he paid the draft. True, the debt had its origin in the city of New York, where the draft was drawn and dated ; and if any controversy existed between the complainants and Smith in relation to the transaction, it would be considered as arising within this circuit; but the defendant’s connection with it may be regarded as having a distinct origin, since the bill does not show that he was privy to Smith’s offer, at the time he contracted for the goods, to give the defendant as endorser. The defendant may have consented for the first time to become such endorser or surety after the goods had been delivered, and the draft drawn and sent to Auburn for acceptance. I am strongly inclined to think this is the correct view to be taken of the question of locality, and that this bill ought, consequently, to have been filed before the chancellor or the vice-chancellor of the seventh circuit; still, another question arises, whether the objection to the jurisdiction here is properly taken in this case by plea ? The plea sets out three facts; First: that the defendant endorsed the draft at Auburn ; Secondly : that he paid it there; And thirdly: that the defendant resides at that place and not within the limits of the first circuit. Now all these facts abundantly appear on the face of the bill itself, and can be taken advantage of by demurrer; then why should a plea of the same facts be interposed. It would be confounding all distinction between a plea and a demurrer, to hold that a plea can be proper or admissible in such a case. On this ground I am of opinion the plea must be overruled with costs, leaving the defendant to set up the objection of a want of jurisdiction in some other form as he may be advised.