Eames v. Carlisle

By the court. At the common law, a transitory action may be brought in any county. Comyn’s Digest “ Action” N. 6.—Cowp. Rep. 181. [131] But our statute, entitled t: an act regulating process and ai trials in civil causes,” section 4, enacts, “ that all personal “ or transitory actions, where both parties are inhabitants of 45 this state, may be commenced in the county wherein ei-u ther of the parties to the suit may be an inhabitant, and “ not elsewhere in this state.” 1 N. H, Laws 49. The question is, whether in this case both parties are to be considered as inhabitants of this state, within the meaning of the above clause in the statute ? It has been decided in the supreme court of the United States, that where the jurisdiction of the Federal courts depends upon the parties being citizens of different states, each of the plaintiffs must be capable of suing each of the defendants in the courts of the United States, to support the jurisdiction. 3 Cranch 267, Strawbridge vs. Curtiss. And it seemed to us at first, that to take away the common law right to sue in any county, and to bring the case within the intent of the clause in the statute now under consideration, all the plaintiffs ought to be inhabitants of this state. But as this provision in the statute was intended to remedy an existing mischief, and to relieve defendants from the vexation of being wantonly sued in distant counties, we are inclined to think it ought to be construed liberally, and are of opinion, that if any of the plaintiffs are inhabitants of this state, the action must be brought in some county, where a plaintiff, or where a defendant, lives, and the case of Day vs. Jackson, (5 Mass. Rep. 237,) is an authority directly in point. 7 Mass. Rep 462.—5 ditto 94.—2 ditto 544.—9 ditto 321. As the objection appears on the face of the writ, it may be quashed without a plea. 7 Mass. Rep. 461, Hawkes vs. The county of Kennebeck. This is more favorable to the plaintiff than a plea in abatement, because when the writ is quashed, he is not subjected to costs. 6 Mass. Rep. 4, Jarvis vs. Blanchard, Writ quashed.