(C) When distinct Things may be laid in same Action.

Two candidates at a county election are jointly liable to the sheriff for the expenses of the election, if they have jointly promised to pay; but if they have not jointly promised, they must be sued separately under the stat. 18 Geo. 2, c. 18, § 7.

Wathen v. Sandys, 2 Camp. 640.

Where a party of several persons dine together at a tavern, they are jointly liable for the whole expense, and not merely each for his own share. But the officers of a regimental mess are only separately liable,

each for his own share.

Forster v. Taylor, 3 Camp. 49; Browne v. Doyle, 3 Camp. 51, n.

Where goods were ordered by one of two chapel wardens for the use of the chapel, it was held that the chapelwarden giving the order might be sued separately without joining his brother warden.

Shaw v. Hislop, 4 Dow. & Ry. 241; and see 8 Moo. 20; 1 Bing. 201; 6 Dow. & Ry. 122.

Where several actions were brought against several members of a mining partnership for the same debt, the defendant in one action having paid the debt and costs in that action, the court stayed the proceedings in the other actions without costs.

Carne v. Legh, 6 Barn. & C. 124.

The same plaintiff may bring several actions against several parties, all liable to him in respect of the same injury, where he does not obtain adequate redress in the action against the party first sued.

Morris v. Robinson, 3 Barn. & C. 196; 5 Dow. & Ry. 35.

A man cannot declare against one defendant for an assault and battery, and against the other for taking away his goods; because the trespasses are of several natures, and against several persons. (a)

Stile, 153, adjudged. And see Aron v. Alexander, 3 Camp. 35.|| (a) And are several distinct causes of action.

If A leases for years to B and C rendering rent, and C assigns his moiety to D and after rent is arrear, A may bring one action of debt for the rent against B and D, for the reversion remains entire.

Palm. 283. A plaintiff cannot split up and divide an entire cause of action, so as to maintain two or more suits upon it, without an agreement with the defendant: a recovery in the first suit will be a bar to the second. Ingraham v. Hall, 11 S. & R. 78; Smith v. Jones, 15 John. 229; Willard v. Sperry, 16 John. 121; Miles v. Covert, 1 Wend. 487; Colvin v. Corwin, 15 Wend. 557; Strike's case, 1 Bland, 95; Crips v. Talvande, 4 McCord, 20; James v. Lawrence, 7 Har. & J. 73; 13 Wend. 644; 8 Wend. 492; 15 John. 432; 16 John. 136; 5 Wheat. 286; 3 Greenl. 350. But this rule does not apply when the demands are distinct and similar, though the causes of action are similar. 13 Wend. 644; 15 Pick. 409; 3 Conn. 377; 2 Wend. 269.7

G 2

78

ACTIONS LOCAL AND TRANSITORY.

ORIGINALLY all actions were tried in the proper counties in which they arose, pursuant to the maxim, vicini vicinorum facta præsumuntur scire: this created no inconveniency, for all men being anciently in decenna, they were easily come at, the decenna being responsible for their appearance. But when the custom of the decennary began to wear off, men used to fly from their creditors, and this begot the distinction between local and transitory actions: the first relating to lands, which must be tried where the lands lie; the other, a debt or duty adhering to the person wherever he fled. Hence men omitted to date their contracts from any certain place, and began their obligations with noverint universi. When this distinction was established, the license it gave was soon abused to a great degree; for plaintiffs would lay their actions far from the place where the fact was done; and the defendants, for fear of being outlawed, were necessitated to carry their witnesses into that county, how far soever remote from the place where the cause of action arose.

7 Co. 1; Gilb. Hist. C. P. 89. Where an action is founded on privity of estate, it is local, where on privity of contract it is transitory. Therefore assumpsit may be brought in one state for the occupation of lands in another. So actions of debt or covenant between lessor and lessee for the recovery of rent, being founded on privity of contract, are transitory. So is covenant by the assignee of the reversion, but debt is not. Henwood v. Cheeseman, 3 S. & R. 502, 503 ; Corporation v. Dawson, 2 John. C. 335; Low v. Hallett, 2 Caines' R. 374; Lienow v. Ellis, 6 Mass. 331; Binney v. Haim, 2 Litt. 263.

To redress this abuse, and to compel the suing out of all writs arising upon contract in the very county where the contract arose, it was ordained by the statute of 6 R. 2, c. 2, that if the writ was of one county, and the plaintiff declared of another, the writ should be quashed. But, this is not expressly forbidding the writ to be sued in a foreign county, the statute of 4 H. 4, c. 18, directed all attorneys to be sworn that they would make no suit in a "foreign county." And the court rules of 15 Eliz. and A. D. 1630, made it highly penal for attorneys to transgress this statute.

Black. R. 1032. Vide 3 S. & R. 503; 2 Litt. 263; 6 Mass. 331.g

Soon after the statute of H. 4, a practice began of pleading in abatement of the writ the impropriety of its venue, even before the plaintiff had declared. At first, in the reign of H. 5, the courts examined the plaintiff on oath as to the truth of his venue: but soon after, they allowed the defendant to traverse the venue, and to try the traverse by the country. But this practice being subject to much delay, the judges introduced the present method of changing the venue upon motion, upon the equity of the statutes of R. 2, and H. 4. Which Lord Holt says began in the time of James I. And among the fees of the King's Bench found by a jury under the king's commission, 1630, one is, "for every rule to alter a visne." Tyre's Jus. Filiz. 231. The form of the rule and affidavit are also stated in Styl. Pr. Reg. (edit. 1657,) 331, as established in 23 Car. 1.

Rastall, tit. Debt, 184, b.; Fitzh. Abr. tit. Briefe, 18; Salk. 670.

(A) What Actions are Local or Transitory.

An affidavit was necessary, because the motion succeeded, and was equivalent, to a plea in abatement; and these are called the common rule and common affidavit in 16 Car. 2; 1 Sid. 185; though the practice did not universally prevail till after the statute of jeofails, 16 & 17 Car. 2, c. 8. Before that it was usual to wait till after trial and verdict, and then arrest the judgment for want of a proper venue. But the statute having abolished that practice, the mode of changing the venue by motion and affidavit began universally to prevail.

Yet, as it would be hard to conclude the plaintiff by the single affidavit of the defendant, he is at liberty to aver that the cause of action arose in the county where the venue is laid, and to go to trial on that fact at the same time that the merits are tried by undertaking to give material evidence in that county. This is equivalent to joining issue, (as in Fitzherbert, before cited,) that the cause of action arose in the first county. And if the plaintiff fails in proving it, he must be nonsuited at the trial; which has in this case the same effect as quashing the writ by a judgment on a plea in abatement.||

Gilb. H. C. P. c. 7.

And here we shall consider,

(A) What Actions are Local or Transitory.

(B) In what Cases the Court will change the Venue.

(A) What Actions are Local or Transitory.

ALL actions real or mixed, as trespasses, quare clausum fregit, ejectment, waste, &c., must be laid in the county where the lands lie.(a) That all actions on penal statutes must be laid in the proper county, vide ACTION qui tam, letter (C). Co. Lit. 282; 6 Mod. 222. (a) If not laid so, it is cause of demurrer. 2 Black. R. 1070. || But advantage can be taken of it only by demurrer; for it is aided after verdict by the statute of 16 & 17 Car. 2, c. 8; Mayor, &c. of London v. Cole, 7 Term R. 583; and see Willes, 431. Not, however, in the case of an ejectment, for the sheriff of one county cannot deliver the possession of land in another. If the declaration do not set out the parcels, (as is now often the case,) it is necessary to set out the indenture on oyer in order to raise the objection.|| Actions for personal injuries are of a transitory nature, and follow the persons or forum. Gardner v. Thomas, 14 Johns. R. 134. Debt on judgment is local. Barnes v. Kenyon, 2 Johns. C. 331. So scire facias to revise judgment. M'Gill v. Perrigo, 9 Johns. 259. An action for escape is not local; quære, as to venue, Bagert v. Hildrech, 1 Caines' R. 1. Covenant on seisin is local. Clarkson v. Gifford, 1 Caines' R. 5. An action of covenant that runs with the land, as a warranty, in the hands of remote grantees, is local. Birney v. Haim, 2 Lit. R. 263.

So, an action of debt for rent, ||or covenant for rent or not repairing, &c.,|| against an assignee of a term on the privity of estate is local, and will lie nowhere but in that county where the lands are.

Cro. Car. 183; Jones, 43; Thrale v. Cornwall, 1 Wils. 165; || Carth. 182, 183; Stevenson v. Lambard, 2 East, 580. An action founded on privity of estate, is local; one founded on privity of contract, is transitory. Henwood v. Cheesman, 3 S. & R. 502.g

So, also, the assignee of the reversion must sue the assignee of the term in the county where the land lies. And so also, as to the assignee of the term suing the assignee of the reversion; for the statute transfers the privity of contract to the assignee of the term, in the same manner as the lessor had it; and the lessor must sue in such case where the land lies, and be sued there.||

3 Mod. 337; 1 Show. 199; Carth. 182; 1 Salk. 80; 5 Rep. 17, a. See 3 S. & R. 502, 503; 2 John. Cas. 335.g

(A) What Actions are Local or Transitory.

So, where A granted a rent-charge to B and C for their lives, and the lands out of which it issued came to the defendant after the death of A, and the plaintiff, as executor of the survivor of the grantees, brought debt for arrears incurred in their life-time, and laid his action in the county where the lands lay; on application of the defendants to have it tried elsewhere, suggesting the plaintiff's power and interest in that county; it was holden a local action, and not triable elsewhere. Hob. 37, Pine v. Countess of Leicester.

A, as assignee of a reversion, brought covenant against the assignee of the lessee, on an express covenant between the lessor and the lessee, for payment of rent reserved out of lands which lay in Ireland, and which was made payable in London. On plea to the jurisdiction of the court, it was held, that though such action may be maintained here by the lessor against the lessee, (a) yet that, by the assignment, the privity of contract was destroyed; and there being nothing but a privity of estate between the two assignees, it made the action local.

Carth. 182, Damer and Barker; Salk. 80, pl. 1; 3 Mod. 336; Show. 191, S. C.; 6 Mod. 194, S. C., cited, and admitted to be good law, there being no privity of contract remaining; and there is no difference between debt and covenant, where the action is by lessor against lessee, &c. (a) The assignee of the reversion may maintain debt or covenant upon the statute 32 H. 8, cap. 34, against the lessee; per Holt, C. J., 6 Mod. 194, for the privity of contract is transferred to the grantee by the statute. Carth. 183; 1 Saund. 238, S. P., 240, S. P. See the notes to this case in Will. Saunders, (5th ed.) 3 Lev. 154; 1 Wils. 165. So, also, may the lessee bring covenant against the assignee of the reversion in any county, by virtue of the statute. Thursby v. Plant, 1 Will. Saund. 238.||

Whenever the action is brought upon the contract itself, it is transitory; therefore, the lessor may bring debt or covenant against the lessee, and the lessee covenant against the lessor in any county.

Bulwer's case, 7 Rep. 2, a; 1 Will. Saund. 241, e. Birney v. Haim, 2 Litt. 262; Harwood v. Cheesman, 3 S. & R. 502; Lienow v. Ellis, 6 Mass. 331.

An action of debt for use and occupation is not local.

Egler v. Marsdon, 5 Taunt. 25. The action of account for rents and profits of land is transitory. Lewis v. Martin, 1 Day, 263. See 3 S. & R. 502.

But where the lessor brought debt against the lessee, and declared on a demise of lands which lay in Jamaica, on plea to the jurisdiction of the court, and objection, that if the defendant had any good local plea, he was hereby deprived of it; the court held, that this being on the privity of contract, was a transitory action, (b) and might be laid anywhere; and that, if a foreign issue arose which was local, it might be tried where the action was laid; and for that purpose, there may be a suggestion entered on the roll, that such a place, in such a county, is next adjacent; (c) and it may be tried here by a jury from that place, according to the laws of that country: and upon nil debet pleaded, the laws of that country may be given in evidence.

6 Mod. 194, Way and Yally; 2 Salk. 651, p. 31, S. C. (b) 2 Stra. 776, S. P.; 2 Vin. Ab. 82, pl. 19. (c) For this vide 6 Co. 48; 7 Co. 26; Vent. 59. New York v. Dawson, 2 John. Cas. 335; Low v. Hallett, 2 Caines, 374.

If a declaration contains matters lying in two counties that join, it shall be tried by both counties, on a venire directed to the sheriffs of both counties, who are to summon six of each county.

Cro. Eliz. 646. As to an assize in confinio comitatus, see St. 7, R. 2, c. 10; Co. Litt. 154, a; F. N. B. 180, a; and 55 H. 6, 30, a. When the action is local, it

(A) What Actions are Local or Transitory.

must be brought in that county which exercises jurisdiction over the place where the cause of action arose; it is not competent for the defendant, with a view to avoid the jurisdiction on the principle that the action is local, to show that, de jure, the line of the county ought to be established in a different place from that in which it is actually established and known. Hathorne v. Haines, 1 Greenl. 246. g

Where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action; there the plaintiff may bring his action in which of the counties he will.||

Bulwer's case, 7 Co. 2, a; Scott v. Brest, 2 Term R. 241; Mayor, &c., of London v. Cole, 7 Term R. 583; Pope v. Davis, 2 Taunt. 252; and see Cro. Eliz. 646. Sed vide 3 Barn. & C. 700; 4 Barn. & A. 179.

An action of debt against the executor of a lessee, in the detinet for arrears in the testator's lifetime, may be brought anywhere; but where it is in the debet and detinet for rent accrued in the executor's time, it must be where the land lies. (a)

Latch. 262, 271; 3 Co. 24. (a) Covenant or debt in the detinet against an executor for rent accrued in his own time, may also be laid anywhere; for he is charged on the privity of contract, and is only liable to the extent of assets. 1 Sid. 266; 2 Lev. 80; i Will. Saund. 1, note 1, and 241, c, notes, and cases there cited.||

All personal actions, as debt, detinue, assault, deceit, trover and conversion, account, &c., may be brought in any county, and laid in any place; and the defendant cannot traverse it, or be allowed to say, that the cause of action accrued in another county or different place, except in the case of an officer of justice, who may plead a special justification.

Co. Lit. 282. Debilum et contractus sunt nullius loci. 2 Inst. 231; 7 Co. 3. Debt on a domestic judgment is local, and must be brought in the county where the judgment was given. Barnes v. Kenyon, 2 John. Cas. 381; 10 Mass. 337. So of a scire facias to revive a judgment. M'Gill v. Perrigo, 9 John. 259. On the contrary, an action on a foreign judgment, when the plaintiff is not an inhabitant of the state, may be brought in any county. Mitchell v. Osgood, 4 Greenl. 124.

[An action against the sheriff for a false return is transitory; for that which is false is universally so.

Griffith v. Walker, 1 Wils. 336. In Massachusetts, actions against sheriffs and constables, concerning their offices, are transitory, the English statute, 21 Jac. 1, c. 12, not being in force there. Foster v. Baldwin, 2 Mass. 569; Marshall v. Hosmer, 3 Mass. 23; French v. Judkins, 7 Mass. 229; Pearce v. Atwood, 13 Mass. 324. In New York, an action on the case against a sheriff is made local by statute, where the acts of the sheriff are virtute officii, but not for acts colore officii. Seely v. Birdsall, 15 John. 267. g The assignee of a bail-bond may bring an action upon it, either in the county where it is taken, or in that where it is assigned.

Gregson v. Heather, 2 Stra. 727. Ld. Raym. 1455, S. C.

An action for breach of customs of a town is local; the averment of an immaterial fact will not, in such case, warrant the laying the venue out of the proper county.]

Mayor of Berwick v. Ewart, 2 Black. R. 1068.

An action may be brought on a contract or matter which arose beyond sea: as, if A enters into a bond to B, in any foreign country, and the bond bears date in no place, B may bring his action where he pleases, and allege that the bond was made in any place in England; but if there be a place mentioned, as Bordeaux, in France, then shall he allege that the bond was made in quodam loco vocat. Bordeaux, in France, (to VOL. I.-11