nuisance.40 The action for mesne profits, growing directly out of the recovery in ejectment,11 and being inseparable from it, must be for that reason local, as well as upon principle,12 although no longer an action of trespass. contract are when found of estate. Actions on contract are transitory.43 Debitum et contractus Actions on sunt nullius loci. But there are exceptions to this rule. transitory. Where the action is founded on privity of estate, and not But not on privity of contract, it is then, as savouring of the realty, ed on privity local.44 Thus, where debt is brought upon a lease for rent, by the assignee15 or devisee46 of the lessor against the lessee, which is founded on the privity of estate, the action is local. So if an action of debt be brought by the lessor47 or his personal representatives,48 or by the grantee of the reversion19 against the assignee of the lessee, it is local. So if the action be by the assignee of the lessee against the lessor, or his assignee, the action is local.50 If an action of debt be brought for use and occupation, against the executor of the lessee, as assignee, upon the privity of estate, in the debet and detinet, it is local.51 When privi and ty of con The privity of contract, however, between the lessor lessee, is transferred by statute52 from the lessor to his gran 40 Ib. 1 Taunt. 379. 412 R. St. 310. P. 3. Ch. 5. T. 1. s. 43. 44. 45. 46 W Jon. 53. 2 John. Cas. 335. 47 6 Mod. Rep. 194. 7 Durn. & East. 583. 2 East. 580. 2 John. 42 Com. Dig. "Action" N. 1. Cas. 335. 2.3. 43 1 Bac. Abr. 57. Com. Dig. "Action" N. 12. 1 Saund. Rep. 74. n. 2. 3 Camp. Rep. 304. 2 J. Cas. 335. 2 Caines' Rep. 373. 44 2 John. Cas. 335. 1 Caines' Rep. 5. 2 Caines' Rep. 273. 5 Cowen's Rep. 18. 1 Saund. Rep. 241. b. (6) Com. Dig. "Action" N. 4. 45 Cro. Car. 183. 1 Wils. Rep. 48 Latch's Rep. 197. 49 Carth. Rep. 182. 3 Mod. Rep. 336. 1 Salk. Rep. 80. I Show. Rep. 191. S. C. 7 Term Rep. 583. 50 2 East. Rep. 575. 51 2 Lev. Rep. 80. 3 Keb. Rep. 135. S. C. Gilb. Debt 403. Gilb. C. P. 91. 1 Bac. Abr. 57. 52 1 R. St. 747. P. 2. Ch. 1. T. 4. s. 23. 24. 25. tract transferred by statute and action made transitory. Action on lease transi ded on privi ty of con tract. tees and assignees, and the heirs and personal representatives of the lessor, his grantee, or assignee, so that the latter may have an action of covenant wherever the lessor might have had it. The same privity is also transferred from lessees to their assigns and personal representatives, and against the grantees, assignees, and representatives of the lessor, so that the lessee, his assigns, and personal representatives, have an action of covenant against the lessor, his grantees, assignees, and representatives, wherever the lessee could have had such action against his lessor, except where the covenants are against incumbrances, or relate to the title or possession of the premises. Covenant, therefore, is in these cases made transitory by statute.58 And wherever an action upon a lease is founded upon pritory if foun- vity of contract, it is transitory.54 Thus, in debt or covenant by the lessor against the lessee, the action, being founded on privity of contract, is transitory.55 So if an action of debt be brought by the lessor against the executor of the lessee, in the detinet only, it is transitory.56 An action for use and occupation, being founded on privity of contract, is transitory.57 Debt or judg- Debt on judgment is, in England, local, and must be state, semb brought in the county where the record is.58 In this state, this rule was adopted1o1 in suits in the supreme courts on judgments of courts of common pleas; but a later decision has rejected its application to judgments of the supreme court,59 and the court say, that "admitting the English practice to be as stated, there is no reason why we should follow it. The main object ment not lo cal in 53 1 Saund. Rep. 238. 241. n. 5. 6. Carth. Rep. 183. 1 Wils. Rep. 165. 54 Com. Dig. Action N. 4. 55 3 Lev. Rep. 154. 6. Mod. Rep. 194. 2 Str. Rep. 776. 2 Salk. Rep. 651. 56 Gilb. Debt 403. Gilb. C. P. 91. Com. Dig. Action N. 57 2 John. Cas. 335. 2 Caines' Rep. 374. 58 Hob. Rep. 169. 196. Vin. Abr. Trial H. a. 2. pl. 17. 1 Chitty Pl. 272. 101 2 John. Cas. 281. of a venue is to facilitate the obtaining and introduction of testimony at the trial. These trials in debt on judgment, when by record, are in term time, by the record itself, without regard to the place where it may be filed. There is nothing in the nature of debt on judgment which makes it local." The reasoning of this decision applies equally to judgments of the county courts of the state, when sued in the supreme court. A scire facias to revive a judgment, is local, and must be Scire facias brought in the same county with the original suit.60 Actions on bail bonds and on recognizances of bail must be brought in the county where the original suit was commenced,61 and in the same court, except that where the original suit was in a court of common pleas and the bail have removed out of its jurisdiction, the action may be brought, from necessity, in the supreme court.62 on judgment local. Actions on bail bonds and recogni zances local, &c. Actions for and torts Actions for trespasses, or tortious injuries to the person or trespasses personal property, are transitory.63 Thus actions for assaults, transitory batteries and false imprisonment 564 for words and libels;101 for taking away or injuring personal property,65 and for escapes, may be brought in any county.66 But replevin has been held to be generally a local action.67 Now it is provided by the how of re revised statutes, that "whenever an action of replevin shall be brought for the recovery of goods or chattels, distrained for any cause, it shall be laid in the county in which the distress plevin. Actions made local by statute. ly; was made, and not elsewhere; in other cases the action shall be laid and tried in like manner as actions of trespass for injuries to personal property." Many actions are made local by statute for especial reasons which would otherwise be transitory. Thus it is provided that, "every action for a penalty or forfeiture, shall be brought For penalties in the county where the act was done, upon which such penalty &c. generalor forfeiture attached; and if brought in the supreme court, the venue in such action shall be laid in such county." "Where such penalty or forfeiture attaches in consequence of the omission of any public officer to perform any duty incident to his office, the action shall be brought for the recovery thereof, and the venue shall be laid, in the county of which such person was an officer."69 how in cases ces on rivers between counties. It is also provided that "When any penalty or forfeiture shall be imposed by law, for any offence committed on any or for offen- river, lake, or other stream of water, and such river, lake or stream shall be situate in two or more counties, an action for the recovery of such penalty or forfeiture, may be brought by the proper officer, in any county bordering on such river, lake or stream, and opposite to the place where such offence was committed." 9970 Suits against public officers local, Public officers and their agents have the privilege by statute of being sued, for any act done by them by virtue of their of fice, or touching the duties of such officers, in the county where the act was done. It is provided that "every action against any public officer appointed under the authority of the state, or elected by the people, and against any person specially appointed according to law, to execute the duties of any such public officer for or concerning any act done by such officer or person by virtue of his office, and every action against any other person, who by the commandment of such officers or 68 2 R. St. 522. P. 3. Ch. 8. T. 12. s. 3. 69 2 R. St. 482. P. 3. Ch. 8. T. 6. s. 8. 9. 70 2 R. St. 481. P. 3. Ch. 8. T. 6. s. 4. persons, or in their aid or assistance, does any thing touching the duties of such office or appointment, shall be laid in the county where the fact complained of happened, and not elsewhere."71 done virtute Under a similar provision in the old statutes, it was held for acts that an action on the case against a sheriff for a false return officii. was a local action.72 The court say "the true distinction is between an act done colore officii and virtute officii. In the former case, the sheriff is not protected by the statute, where the act is of such a nature, that his office gives him no authority to do it. But where in doing an act within the limits of his authority, he exercises that authority improperly, or abuses the confidence which the law reposes in him, to such cases the statute extends." 74 actions ari the state brought actions. Departures rule. Transitory actions, arising out of the state, may be brought Transitory in any county, but local actions arising out of the state cannot sing out of be maintained within it.73 In Mostyn v. Fabrigas, however, may be (in which this subject of local actions is admirably discussed,) of local Lord Mansfield held, that a local action arising out of England might be brought within the realm, on grounds of expediency from this and necessity. And our own courts, in a case which arose on the high seas, in a British vessel between British subjects, and was admitted to be transitory, refused to entertain the action for reasons of public policy. It is true that this was a case between the master of the ship and one of his seamen; and the court insisted strongly on the circumstance that a voyage might be broken up by the interferance of our courts in such cases; but their objections appeared to rest also on grounds of more general policy. 75 In the circuit and district courts of the United States, in U. s. Courts. 712 R. St. 353. P. 3. Ch. 6. T. 2. s. 14. 72 15 John. Rep. 269. 73 Cowp. Rep. 161. 4 Term Rep. 503. 1 Str. Rep. 646. 74 Cowp. 161. 75 14 John. Rep. 134. |