Morris v. Farrington

Morton, C. J. 1. The defendant contends that this is a civil action for the .recovery of a forfeiture, which by the statute could be brought only in the county of Suffolk; that it is therefore a local action, and the Superior Court sitting for the county of Worcester had no jurisdiction. Gen. Sts. c. 123, § 8. Pub. Sts. e. 161, § 11. But, if we can regard this as a local action, the Superior Court was not required, as matter of law, to allow the defendant’s motion to dismiss. The statutes provide that, “ when it appears on a trial that a local action has been brought in an erroneous venue, the court may of its own motion order a nonsuit to be entered, unless good cause shall be shown why the trial should be allowed to proceed.” Gen. Sts. c. 129, § 70. Pub. Sts. c. 167, § 73. It is also provided that, when judgment is rendered in a local action brought in an erroneous venue, the court shall issue its execution directed to the sheriff of the proper county, so that the judgment may be duly executed. Gen. Sts. c. 133, § 14. Pub. Sts. c. 171, § 14. It has been held that, under these provisions, it is within the discretion of the court, whether a local action brought in an erroneous venue, in which the defendant has appeared and answered to the merits, shall be dismissed, [468] or proceed to trial. Putnam v. Bond, 102 Mass. 370. Osgood v. Lynn, 130 Mass. 335. These cases are decisive of the case at bar, and the defendant’s exception to the refusal of the Superior Court to dismiss the action cannot be sustained. 2. The statute provides that, “if the loser does not within three months after such loss, without covin or collusion, prosecute with effect for such money or goods, any other person may sue for and recover treble the value thereof in an action of tort.” Gen. Sts. c. 85, § 1. Pub. Sts. c. 99, § 1. We think the construction of this provision adopted by the Superior Court was correct, and that, to defeat the plaintiff’s right of action, there must be shown some covin or collusion between herself and the loser, by which the loser was induced to delay bringing an action within three months after the loss. If the loser did not bring his action within three months after the loss, there being no covin or collusion between himself and the plaintiff to affect his action or inaction, a right of action vested in the plaintiff to recover three times the amount of the loss; and the statute does not provide that this right shall be defeated by any agreement between the .plaintiff and the loser, by which the latter is to receive some benefit from the suit made after the cause of action had vested in the plaintiff. The court therefore rightly refused to give the instructions requested by the defendant. 3. The question put to the defendant in his cross-examination, as to whether there had been any change in the occupancy of his premises in which the loss by gambling occurred, is not shown to have been inadmissible. The aspect of the case at the time it was put may have been such as to make it admissible, upon the issue of his knowledge that the premises were used for purposes of gambling, or to test his credit and truthfulness. The bill of exceptions shows nothing as to the connection in which it was put, and fails to - show that there was error in admitting it. Exceptions overruled.