ing county. And by the 4th section of the same statute, the same rule is established as to actions between counties. The 3d section provides that any inhabitants of a county may commence their suit against such county, either within the same or an adjoining county.

Where City of Boston is a party. By Stat. 1815. ch. 103. s. 1. all suits in which the City of Boston is a party, may be brought in either of the counties of Norfolk, Essex or Middlesex.

On probate bonds. By Stat. 1786. ch. 55. s. 3. all suits upon probate bonds in the name of a Probate Judge must be brought in the county to which such Judge belongs.

Trustee writs. All writs in which any person or persons are cited as trustees must be made returnable in the county where the trustees dwell; or if they dwell in different counties, it must be made returnable in a county where some one dwells.1

It will make no difference if the only person summoned as trustee be afterwards discharged, but if his name be originally inserted, for the purpose of giving the court of a particular county jurisdiction, and with a knowledge that he is not a trustee, it may be pleaded in abatement of the suit, either by the principal or by the trustee. But it cannot be pleaded in bar: nor inquired into on motion.1

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Justice writs. Writs issued by a justice of the peace were formerly by the form given in the statute," return

1 Stat. 1794. c. 65. s. 1.

2 Jacobs et al. v. Mellen and Trs. 14 Mass. Rep. 132. And vide Barker v. Taber, et al. and Trs. 4 Mass. Rep. 81.

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Dunning v. Owen and Tr. 14. Mass. Rep. 157.

Davis v. Marston and Tr. 5. Mass Rep. 199.

Stat. 1784. ch. 28. s. 3.

able at the dwelling house of the justice, and it was questionable whether a departure from the form in this particular would not be fatal, if duly objected to. By a recent statute however,' it has been enacted" that all actions and suits which may be tried by justices of the peace within this Commonwealth, and wherein they have jurisdiction, may hereafter be heard and determined by them at other places than their dwelling houses Provided the same be usual and convenient places of business in the towns in which they reside." And by the second section of the same statute, it is made lawful for said justices so far to vary the form of writs and processes issued by them, as to make the same returnable to said places, and the proceedings had thereon shall be good and effectual in law.

All actions brought before a justice of the peace must necessarily be brought in the county where the defendant lives, or where he may be found by the officer to whom the precept is directed. It was held in Sumner v. Finegan' that actions local at common law arising in one county might be commenced in any other, where the writ could be served on the defendant.

1 Stat. 1828 ch. 64.

2 15 Mass. Rep. 280.

SECT. VI.

INDORSEMENT OF WRITS.

The indorsement of writs was regulated by the eleventh section of Stat. 1784, ch. 28. until this section was repealed by the late Stat. 1833. ch. 50. s. 1.

1. What writs must be indorsed. By the second section of the Stat. 1833. ch. 50. it is provided, "that all original writs, writs of error, scire facias, or review,- bills in equity, libels for divorce,-petitions for partition, mandamus, certiorari, new trial, review, or for a sale by mechanics and others, having by law a lien upon any buildings or land, — if the plaintiff or petitioner is not an inhabitant of this Commonwealth, shall, before the same shall be entered in the court, or before the justice, where the same shall be by law returnable or commenced, be indorsed on the back thereof, by some responsible person, who is an inhabitant of this Commonwealth, either by himself or his agent or attorney."

By the third section, it is provided, "that if, during the pendency of any of the processes aforesaid, the plaintiff or petitioner shall remove out of the Commonwealth, the court before which the same shall be pending, shall, on motion, order the plaintiff or petitioner, to procure such indorser; and in case an indorser of any of the processes aforesaid shall, during the pendency thereof, remove out of the Commonwealth, or become insufficient to respond as hereinafter provided, and the plaintiff or petitioner shall not then have become an inhabitant of the Commonwealth, the court shall, on motion, order such plaintiff or petitioner to procure a responsible new indorser. And if any plaintiff or petitioner shall fail to comply with such

order of court when thereto directed, in either of the cases aforesaid, said process shall be dismissed."

The changes effected by the foregoing statute, as to what writs are required to be indorsed, are the following: 1st. That no writs need now be indorsed, unless the plaintiff or petitioner either lives, or during the pendency of the writ removes, out of the Commonwealth.

2d. That, with the foregoing limitation to cases where the plaintiff lives or removes out of the Commonwealth, justice writs must be indorsed, which had not been required before and also writs of error, which it had been before holden, being judicial writs, need never be indorsed.1

It had been holden under the former statute, that a writ of replevin was an original writ, and therefore must be indorsed, notwithstanding the plaintiff was obliged to give a bond with sureties, for the payment of the costs, as well as to restore the property, if he failed to maintain his suit. It is presumed that the same is true under the new statute.

The case, where there are several plaintiffs, some of whom live within and the others without the Commonwealth, is not directly provided for by the statute. It is presumed, however, that if any of the plaintiffs are inhabitants of the Commonwealth, the writ need not be indorsed.

It may here be remarked, by way of caution to practitioners, that though the necessity of any indorsement of writs is confined to cases, where the plaintiff or petitioner, in the writs and petitions enumerated in the statute, either lives, or during their pendency removes, out of the Commonwealth, yet that if doubt

1 Grosvenor v. Danforth, 16 Mass. Rep. 74. 2 Gould v. Barnard, 3 Mass. Rep. 199.

should arise in any case, either from the nature of the action, or the peculiar situation of the plaintiffs, or from any other cause, whether the writ should be indorsed or not, the safest course will be, to cause it to be indorsed, pursuant to the statute.

2. Time when writs must be indorsed. In the cases in which any indorsement of writs is required by the present statute, it must be made before the writs "shall be entered in the court, or before the justice"" &c. and need not be before service as was formerly requisite.

Under the former statute, which required the indorsement to be made before service, it has been holden, that if a writ be issued and served without an indorsement, and the defendant take advantage of the defect, by plea or motion at the first term, it is not in the power of the court, to permit an amendment by suffering the plaintiff then to indorse the writ, the words of the statute being explicit on this point. And within the principle of this decision, it is presumed that the same would be true under the new statute, if a writ were entered before it was indorsed.

The provision in the present statute, that where any indorsement of the writ is required, it may be made before "entry," remedies an inconvenience to which attornies have been exposed by the requisition of the former statute, that it should be made before "service." Claims from out the Commonwealth are generally sent by letter and without any provision for the indorsement of the writ, and if immediate suit were directed, the attorney must either have become the indorser himself,

1 Stat. 1833. ch. 50. s. 2.

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* Decided at Supreme Judicial Court at Worcester, Sept. Term, 1831.