state of New Jersey. It appeared that the defendant went on the land under an agreement to purchase, but a dispute having occurred and the purchase not having been completed, the vendor brought this action. On error by the defendant below it was urged that the action was local.78

TILGHMAN, C. J.: The last exception is, to the jurisdiction of the court of common pleas. The land is in New Jersey, and therefore, the defendant supposes, an action for the rent, can be maintained nowhere out of New Jersey. Were this action, in its nature local, the law would be with the defendant. But the action is transitory, and therefore not confined to New Jersey. The action of assumpsit is founded on privity of contract, not privity of estate. This was decided in the case of The Corporation of New York v. Dawson, 2 Johns. Cas. 335. With regard to actions for the recovery of rent, I take the law to stand thus: Where the action is brought by the lessor against the lessee, being founded on the mere privity of contract, it is transitory, and may be brought out of the county, or state, in which the land lies. But if the lessor assigns the reversion, and the action is brought by the assignee of the reversion, against the lessee, there is a distinction, founded on the form of the action which may be brought. The assignee may, in such case, maintain an action of debt at common law, which being founded solely on privity of estate (for the privity of contract is destroyed by the assignment of the reversion), is local. Or, he may have an action of covenant by virtue of the statute 32 Hen. 8, ch. 34, which transfers the privity of contract from the assignor to the assignee; and this action not being founded on privity of estate, but of contract, is transitory, and may be brought anywhere. This distinction is taken, in the case of Thursby v. Plant, 1 Saund. 237, which is cited by the court in Thrale v. Cornwall, 1 Wils. 165, with this remark, "that it had always been held for good law." We may take the rule then to be, that where the action is founded on privity of estate, it is local, where on privity of contract, it is transitory. I have laid down this rule, when the action is brought by the lessor, or the assignee of the reversion, against the lessee. It is unnecessary to speak now of actions brought against the assignee of the lessee. In 1 Chitty on Pleadings, 274, 275, the cases on this subject are collected, and the result briefly and truly given.

I am of opinion, on the whole, that the present action was well brought, and well supported by the evidence. The judgment should, therefore, be affirmed.

DUNCAN, J.: Assumpsit can not be considered as a local action. It is founded on the contract express or implied, between the parties. No possible case could ever arise, in which the action would be local. But all actions of debt or covenant, between the lessor and lessee, the action being founded on privity of contract, are transitory, whether the lands be abroad, or in the county in which the action is brought. 1 Chitt. Plead. 274. The rule, as I apprehend it,

Only so much of the opinion of the judges as relates to the question of venue is included.

THE CHANCELLOR V. MORRIS

279

is: where the action is founded on privity of estate, it is local; where on privity of contract, transitory. Debt for rent by the assignee, is local. But covenant being founded on privity of contract, is transitory.79 At common law, covenant did not lie for the assignee of the reversion, but is given by stat. 32 Hen. 8, ch. 34. Thrale v. Cornwall, 1 Wils. 165, and so is the distinction, I Saund. 237. It can be no objection to the action, that it concerns the realty, and, therefore, only can be tried in the county in which the land lies. This is not the law of contracts. For where you proceed against the party for damages, for the nonperformance of such contract, you may bring the action wherever the party is to be found. It follows the person, and in Penn v. Baltimore, a specific execution of articles respecting lands lying in America, was decreed by the Court of Chancery of England. For where the title is incidental, the court possessing jurisdiction of the contract, which is in its nature transitory, may even inquire into the very title, let the lands lie where they may. Besides, in this case, the defendant would not be allowed to question the plaintiff's title to the land.

Gibson, J., was absent.
Judgment affirmed. 80

SUPREME COURT OF NEW JERSEY, 1911.

82 N. J. L. 14.

GARRISON, J.: To the declaration filed in the name of the chancellor in an action on a receiver's bond the defendant demurred and also moved to strike out the assignments of breach. Without passing upon the propriety of this joinder, we have, since no objection was interposed by the plaintiff, considered the several grounds urged against the declaration with the result that judgment is given for the plaintiff on the demurrer and the defendant takes nothing by his motion.

Covenant founded on privity of contract is transitory, but when founded
Lienow v. Ells, 6 Mass. 331 (1810); Bracket v.

on privity of estate is local 825); Whitaker v. Forbes, L. R. 1875) 10 C. P.

Alvord, 5 Cow. (N. Y.) 18

583; Tillotson v. Prichard, 60 man v. Lucksinger, 224 Mo. 131 (1909).

80

Vt. 94, 14 Atl. 302, 6 Am. St. 95 (1887); Cole1 (1909); Burt Lumber Co. v. Bailey, 175 Fed.

Bulwer's Case, 7 Co. 57 (1584); W'ey v. Yally, 6 Mod. 194 (1704); Thursby v. Plant, 1 Saund. 237 (1669); Roche v. Marvin, 92 N. Y. 398 (1883); State v. Dist. Court, 94 Minn. 370, 102 N. W. 869 (1905); Clement v. Stanger, 75 N. J. L. 287 (1907); Sheppard v. Coeur D'Alene Lumber Co., 62 Wash. 12 (1911).

Courts of equity act in personam. Penn v. Lord Baltimore, 1 Ves. Sr. 444 (1750); Massie v. Watts, 6 Cranch U. S.) 148, 3 L. ed. 181 (1810); Schmaltz v. York Mfg. Co., 204 Pa. 1, 53 Atl. 522, 59 L. R. A. 907, 93 Am. St. 782 (1902).

The defendant also moved that the venue, which was laid in Atlantic County, be changed to Monmouth County where the defendant resides. The venue as laid is sought to be justified upon the ground that the receiver's creditors in whose interest the action is brought are residents of Atlantic County. Such creditors are, however, not parties to the action, hence the place of their residence was not to be considered in laying the venue, which under the two hundred and second section of the practice act,81 might be either (1) the county in which the plaintiff resides, or (2) in which the defendant resides, or (3) in which the cause of action arose, or (4) in which process was served on a nonresident defendant.

In the present case the venue should have been laid in the county in which the defendant resides since none of the other contingencies existed. Neither the residence of the chancellor as an individual nor the state capital is within the meaning of the statute, moreover no one has moved to have the place of trial in either Morris or Mercer County. The cause of action can not be said to have arisen in any particular county; and the defendant is not a nonresident. There being therefore but one place where the venue could properly be laid under the statute, there was no right of choice in the plaintiff and no room for the discretion of the court under the two hundred and second section. Assuming that the convenience of the persons for whom the action is brought will be considered under the two hundred and third section as if they were plaintiffs, the convenience of the defendant is equally entitled to consideration; and where the conveniences offset each other, the statutory venue should prevail. The venue must be changed to Monmouth County, not for the convenience of the defendant, but because there was no authority to lay it elsewhere, and no sufficient reason has been shown for a change of the venue laid in conformity with the statute.82

81

13 Comp. Stat. N. J. (1910) 4113.

82 In England the rules of the Supreme Court provide, order 36, rule 1, "There shall be no local venue for the trial of any action, except where otherwise provided by statute, but in every action in every division the place of trial shall be fixed by the court or a judge." The place of trial is ordinarily fixed by the master under the summons for directions. The place is fixed according to the balance of convenience, having regard to all the circumstances. Jenkins v. Bushby, L. R. (1891) 1, ch. 484. It is within the discretion of the judge to change the venue. Thorogood v. Newman, 23 Times Rep. 97 (1906).

In the United States the rules as to local venue are to a large extent statutory. Some states adhere to the common law, but in the great majority the subject is fully covered by statute. For example, see New York Code Civ. Pro. §§ 982 to 990; California Code Civ. Proc. §§ 392 to 400; 1 Burns' Ann. Stat. Ind. (1914) §§ 309 to 311. In the various statutes the commonlaw rules are followed approximately in actions relating to land. In transtory actions proper the general policy is that suit shall be brought in the county where the plaintiff or defendant resides. 40 Cyc. 94 and cases there cited. Wood V. Ins. Co., 13 Conn. 202 (1839); Talmadge v. Third Nat. Bank, 91 N. Y. 531 (1883); Archibald v. Miss. R. Co., 66 Miss. 424 (1889); Jacobson v. Hosmer, 76 Mich. 234, 42 N. W. 1110 (1889); Hunt v. Dean, 91 Minn. 96, 97 N. W. 574 (1903); Interstate Cooperage Co. v. Eureka Lumber Co., 151 N. Car. 455 (1909); Hislop v. Taaffe, 141 App. Div. (N. Y.) 40 (1910); Danser v. Dorr, 78 S. E. 367 (W. Va. 1913); Scott v. Miller L. Co., 122 Minn.

DANIEL, J.: In England, when a person is about to commence a suit, the usual course of proceeding is in the first place, to execute a warrant to an attorney of the court to have the writ issued, and the pleadings in the cause made up. The attorney then gives instructions for the original; these instructions are contained in a paper called the praecipe, in which he sets forth the cause of action. Formerly, the practice was to take the warrant and the praecipe to the chancery, where the original writ was caused to be made out by the Master of the Rolls; which original recited the action as stated in the praecipe. The original is a mandatory letter in parchment from the King, tested in his name, and sealed with the great seal. It is directed to the sheriff or other returning officer of the county where the plaintiff intends to lay the venue, and is made returnable to the court either of the King's Bench or Common Pleas, at Westminster. If the sheriff return on the original non est inventus, the original is then left on file in the court, and a judicial writ or process issues, called a special capias ad respondendum, which is grounded upon the original. If the sheriff return on the capias, non est inventus, the plaintiff then may issue an alias, and a pluries, and so on into outlawry, to compel an appearance by the defendant. When the defendant appears in court in consequence of the service of the original, or an arrest on any process which issues upon it, the plaintiff then files his declaration, and serves a copy on the defendant, who defends either by demurrer or plea. If he pleads to the action,

84

377 (1913). As in the principal case many statutes provide that nonresidents may be sued where found or served. Murphy v. Winter, 18 Ga. 690 (1855); Hawley v. State, 69 Ind. 98 (1879); Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. 726 (1892); Steen v. Swadley, 126 Ala. 616, 28 So. 620 (1899); Smith v. Provident Sav. L. A. Soc., 159 Mich. 167 (1909).

The New York Code Civ. Pro., § 987, provides: "The court may, by order, change the place of trial in either of the following cases: (1) Where the county designated for that purpose in the complaint is not the proper county. (2) Where there is reason to believe that an impartial trial can not be had in the proper county. (3) Where the convenience of witnesses, and the ends of justice will be promoted by the change." Similar statutes are in force in most states. See Carpenter v. Central Vermont R. Co., 84 Vt. 538 (1911); Murray Cure Inst. Co. v. Ward, 108 Minn. 527 (1909); State v. District Court, 43 Mont. 571 (1911); Hemenway v. Fitzgerald, 159 App. Div. (N. Y.) 748 (1913); Taber v. Eyler, 162 S. W. 490 (Tex. 1913); Willoughby v. Buffalo, etc., R. Co., 203 Pa. 243 (1902).

Extract from the opinion of the court.

The day for the defendant's appearance is generally the return day of -* the writ. I Tidd's Practice 106; Hunsaker v. Coffin, 2 Ore. 107 (1864).

then the whole of the pleadings to the making up of the issue are completed in the Superior Court at Westminster. A nisi prius record is then made out and transmitted to the court of nisi prius, or the assizes of the county where the venue is laid, that the issues may be there tried by a jury. When a trial takes place, and a verdict is rendered, it is entered on the nisi prius roll, or some paper attached to it which is called the postea, and delivered to the party in whose favor the verdict is rendered, who returns it into the Superior Court, at Westminster, where the record belongs; and on notice being given to the adverse party, a motion is then made for judgment; which, if no cause is shown to the contrary, is rendered by the court upon which issues the execution.

In modern times the practice of commencing suit by original purchased out of chancery, has been tacitly waived by the profession. The practice is now, for the attorney to leave the praecipe and a memorandum of his warrant at the filazer's office, and the filazer thereupon issues a capias ad respondendum, in the first instance, keeping the praecipe as instructions for the original, if it afterwards becomes necessary, by a writ of error being brought after a judgment by default, on demurrer, or on plea of nul tiel record; for the want of an original is aided after verdict, by stat. 18, Eliz. ch. 14. If a writ of error should be brought, for the want of an original, in any of those cases where the defect is not cured by the statute of Elizabeth, the plaintiff may, by a petition to the Master of the Rolls, obtain an original and move the court where the record is, to amend by adding the original, which is always granted. So that the record is complete, when in obedience to the writ of certiorari, it is transmitted into the court of errors. The plaintiff in error will then have nothing in the record upon which he can assign errors, and will fail in his effort to reverse the judgment. (1 Saund. 318, a Archb. P. K. B. 73.) By the rules of the common law, great nicety and exactness were required in the proceedings and pleadings in a suit; small errors and inaccuracies were always sure to be fatal to the party making them; as for instance, in bailable actions, the declaration should always correspond with the writ in the names of the parties, and in the cause of action (Bingham v. Dickie, 1 Eng. C. L. Rep. 276, Archb. Pra. 68, 69, 124), and if there was a variance in these, or in the sum demanded, between the writ and declaration, it would be fatal. (Archb. 68.) 85

See also 3 Blackstone's Commentaries, 270, chaps. 18 and 19; Archbold's Practice, bk. 1, pt. 1; Tidd's Practice, chaps. 5 to 11; Troubat & Haly's Practice, ch. 6; 32 Cyc. 419.

In modern English practice every action in the high court of justice is commenced either by a writ or by an originating summons. A writ is a formal document by which the king commands the defendant to enter an appearance within so many days (usually eight) if he wishes to dispute plaintiff's claim, otherwise judgment will be signed against him. The writ specifies the name and residence of each plaintiff and defendant and the name and place of business of the plaintiff's solicitor. It also specifies the division of the high court in which the plaintiff intends to sue. Besides the formal statements every writ must be endorsed with a statement of the nature of plaintiff's claim and of the relief or remedy required in the action. Ordinarily the en