Majority
p. 604Otis and another vs. Wakeman.
Headnote
Actions against special bail and upon bail bonds, should, in general, be brought in the court where the original suit was commenced; though when necessary they may be brought in other courts.When the action is unnecessarily brought in a court other than that in which the original suit was commenced, the remedy of the party is by motion, and not by flea.
Accordingly, in debt on a recognizance of bail taken in the supreme court of another state in a suit commenced there: held, not a good plea, that the defendant, at and ever since the time of becoming bail, &c., was and still is a freeholder and resident of such state, subject to the jurisdiction thereof; these facts shewing nothing more than a case for equitable relief by motion. ,
Such an action is in its nature transitory; and the fact that it arose in another state, or even in a foreign country, is not an objection to the jurisdiction of our courts respecting it.
A plea to the jurisdiction pf a superior court should show that there is another court. of the same state or country in which effectual justice may be done.
Debt, on recognizance of bail taken in an action of assumpsit brought by the plaintiffs against A. F. James, and Wm. R Taylor, in the supreme court of the state of New-Jersey. Plea, to the jurisdiction, that this court ought not to take cognizance of > the action, because at and ever since the time of becoming bail, the defendant was and still is, a .freeholder and resident of the state of New-Jersey, within and subject to the jurisdiction of the supreme court of that state. Replication, that the plaintiffs, at the time of the commencement of this suit were, and still are, citizens and residents of this state. Demurrer and joinder.
R. W. Peckham, for defendant.
J. L. Wendell, for plaintiffs.
The replication is good for nothing. The question is on the plea. Actions against special bail and upon bail bonds, should, in general, be brought in the court in which the original suit was com
p. 605
menced: though where there is a necessity for doing so, the action may be brought in another court. In this case, there was no necessity for suing in- this state, and the action should have been brought in New-Jersey, where the defendant could have such relief as the laws of that state and the practice of its courts may afford to special bail. But the defendant’s remedy was by motion—not by plea. So are all the cases. (7 John. R. 318. 9 id. 80. 12 id. 459. 13 id. 424. 8 T. R. 152. 1 Burr. 642. 3 Wils. 348.) In Matthews v. Cook, ( 13 Wend. 33 ,) this matter was set up by plea, and judgment was given for the plaintiff, on the ground that the remedy was by motion. True, the original suit in that case was in a court of this state; but that cannot alter the principle. The action is in its nature transitory, and the fact that it arose in another state, or even in a foreign country, does not go to our jurisdiction. (Glen v. Hodges, 9 John. R. .67. Rea v. Hayden, 3 Mass. Rep. 24 . Rafael v. Verelst, 2 W. Black. 1055, 1058. Doulson v. Matthews, 4 T. R. 503. Mostyn v. Fabrigas, Cowp. 161. Comyn’s Dig. Action, (n. 12.) Gould’s Plead. 234, 2d ed. 1 Chit. Plead. 300, ed. of 1837.) The plea should show that some other court in the same state or country has jurisdiction. (Lawrence v. Smith, 5 Mass. Rep. 362 . Rea v. Hayden, 3 id. 24. And see Mostyn v. Fabrigas, Cowp. 172. 1 Chit. Pl. 479, ed of 1837.) The facts stated in the plea do not go to the jurisdiction of the court. They only make out a case for equitable relief on motion.
Judgment of respondeat ouster.
Cases cited
- Matthews v. Cook 13 Wend. 33 p. 605