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in order to entitle the plaintiff to his action at the common

pleas.

Mass. Stat. Feb. 28,

A trustee process must be brought immediately to the Trustee process. common pleas: For of this process a justice of the peace has no jurisdiction: And if, in such action, the plaintiff 1795, act 9, sect. 1. should not recover a greater sum than twenty dollars damages, he would, by the statute of Mar. 11, 1808, be entitled to no more than one quarter as much in costs.

As to the writ de homine replegiando, where the plaintiff stands committed by lawful authority for any crime, for which he may not suffer death, the writ must be returned to the supreme judicial court: but, where the plaintiff is held without order of law, the writ must be returned to the common pleas.

I Mass. T. R. 15.

Mass. Stat. Feb. 19, 1787, sect. 1.

Suits, brought in the name of any probate judge, upon a suits on prob. bonds. probate bond of any kind, must be originally commenced in the supreme judicial court, held within and for the county 1787, sect. 3. unto which the said probate judges respectively belong.

III. In what COUNTY actions must be brought.

Mass. Stat. Feb. 15,

Mass. Stat. O&. 30,

When the plaintiff and defendant both live within the commonwealth, all personal or transitory actions must be 1784, sect. 13. Where brought in the county where one of the parties lives ; the parties both live within the otherwise the writ shall be abated, and the defendant allow commonwealth. ed double costs.

2

Where, however, the inhabitants of one county bring an action, in their corporate capacity, against an inhabitant of a Mass. T. R. 544. another county, the action must not be brought in the county where the plaintiffs reside.

Inhabitants of Lin

2 Mass. T. R. 544.

As where the inhabitants of the county of Lincoln brought an action against one Prince, an inhabitant of the coln v. Prince, county of Cumberland; the action was brought at the common pleas in the county of Lincoln; and the defendant filed a plea to the jurisdiction, on the ground that the judges of the court, and all the jurors, being inhabitants of the county of Lincoln, were directly interested in the event of the suit. To this plea there was a demurre. and joinder; but the piea prevailed, and the writ was abated.

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c. 3 Bl. Com. 294.

Local actions.

Actions on penal stat

utes.

Mass. Stat. June 19,

1788, act 1, sect. 4.

statutes the offence

true county.

affecting land, the plaintiff must sue in the county in which the land lies.

Actions, grounded on penal statutes, are local, and must be sued in the county in which the offence was committed. It is enacted by statute, that in all informations to be exhibited, and in all actions and suits to be commenced, against any person or persons, on the behalf of any inforIn actions on penal mer, or on the behalf of the commonwealth and any inmust be laid in the former, for or concerning any offence committed against any penal statute, the offence shall be laid, and alleged to have been committed in the county, where such offence was in truth committed, and not elsewhere; and if the defendant, so be proved to have in any such information, action, or suit, pleadeth that he the true county, oth- owes nothing, or that he is not guilty, and the plaintiff or informer, in such information, action, or suit, upon evidence to the jury that shall try such issue, shall not both prove the offence laid in the said information, action, or suit, and that the same offence was committed in that county, the issue shall be found for the defendant or defendants.

The offence must al

been commit ed in

erwise defendant shall be acquitted.

Trustee process.

$795, act 9, sed, 1.

The trustee process becomes local when there is a plurality of trustees, who all dwell in the same county.

It is enacted, that when the trustees, named in the writ, Mass. Stat. Feb. 28, do all dwell in one county, such writ shall be made returnable in the county where all the trustees dwell; but when the trustees do not all dwell in one county, such writ may be made returnable in any county, in which any of the trustees dwell.

Actions before justices of the peace must be brought in Mass. Stat. Mar. 11, the county where the defendant dwells; for the authority 1784, act 3, sect. I. of this magistrate does not extend to the issuing writs into a foreign county. However, if the defendant, who lives in a foreign county, be found in the county where the justice resides, the writ may be served upon him there, and the service will be good.

Actions before justices of the peace.

Mass. Stat. Feb. 26,

Actions of debt, on

An action of debt, on a judgment rendered by any court 1796, act 1, sect. 1. of record, or any justice of the peace of this commonwealth, may be brought in the same court, or before the judgment rendered in same justice, where the record remains; or in any court of record, or before any justice of the peace, holding pleas for the county in which either of the parties to such judg

this commonwealth.

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ment, their executors, or administrators, shall dwell and reside, at the time of bringing such action, and proper to try the same.

So also upon a judgment rendered and recorded by a court of record in any other of the United States, or by a court of record of the United States, an action of debt may be brought in any court of record of this commonwealth, holden for the county in which either of the parties to such judgment, their executors, or administrators, shall dwell and reside; or in which any valuable goods, credits, or estate of any debtor in such judgment, shall be found, at the time of bringing such action: Provided, such judg ment shall be certified in the form, and to the effect, which is or shall be prescribed by any general law of the congress of the United States.

Mass. Stat. Feb. 26, 1796, act 1, sect. 2.

Actions of debt, on

judgment rendered in

any other of the United States.

Justifications by officers are sometimes local; in which Bac. Abr. 202. case they must be sued where their justification is.

But in an action against a sheriff for a misfeasance, when

Justifications local,

Marshall v. Hosmer,

the action arises partly from matter of record, and partly 3 Mass. T. R. 23. from matter in pais, in different counties, the plaintiff may

bring his action in either county, at his election.

IV. At what time actions must be entered.

Mass. Stat. July 3,

By statute it is enacted, that no action shall be entered at any court of common pleas, after the first day of the sitting thereof. If, however, by any inevitable misfortune 1782, act 5, sect. 6. or accident, the plaintiff shall be prevented from entering his action upon the first day of the court's sitting, he may, upon making the same appear to the court, enter his action at any time before judgment is given for costs to the defendant.

TITLE VI.

3 Bl. Com. 163.

1 Bac. Abr. 17.

N

ACTION OF ACCOUNT.

An action of account lies to compel the defendant to render a just account to the plaintiff, or shew the court good cause to the contrary.

1st. Of the persons by and against whom this action will lie.

2d. Of the pleadings.

3d. Of the judgment.

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Of the persons by and against whom this action will lie.

An action of account may be brought against a bailiff or receiver; and he is said to be a bailiff, who has the charge of lands, goods, or chattels, to make the best benefit for the owner thereof; such person, therefore, is accountCun. Dict. tit. Bailiff, able for the profits, which he hath raised or made, deducting his reasonable charges and expences. A receiver is one, who has received money or other things for the plaintiff, or to his use.

F. N. B. 117. D.

2 Bl, Com. 194.

Sul. Hist. L. T. 173.

2 Bl. Com. 183.

So also may this action be brought by one partner in trade against his companion.

Where one tenant in common receives more than his proportion of the profits, an action of account will lie against him by the other, and this by the statute of 4 Ann. c. 16, which has been adopted in this commonwealth; for, at common law, no tenant in common was liable to account with his companion.

So also, at common law, before the statute of Ann, one joint-tenant might take all the profits, and his partner had no remedy against him, unless he actually appointed him Sul. Hist. L. T. 170. bailiff, or receiver. But now an action of account will lay by one joint-tenant against another.

This action, by the old common law, lay only against the parties themselves, and not their executors, except the 3 Bl. Com. 164. executors of merchants; because matters of account rested

solely within their own knowledge. But this defect, after
many fruitless attempts in the English parliament, was at

last remedied by the statute of 4 Ann. c. 16, which enacts, 1 Bac. Abr. 17.
that actions of account may be brought against the execu-
tors and administrators of every guardian, bailiff, and re-
ceiver, and by one joint-tenant, tenant in common, his
executors and administrators, against the other, as bailiff,
for receiving more than his share, and against their execu-
tors and administrators.

It appears by the above quoted statute, that an action of account will lay by, as well as against, executors of jointtenants and tenants in common.

So also may a residuary legatee have an action of account against an executor.

By statute it is enacted, that any executor, being a residuary legatee, may bring an action of account against his co-executor, or executors of the estate of the testator, in his or their hands, and may also sue for and recover his equal and proportionable part thereof; and any other residuary legatee shall have like remedy against the executors, So also may one administrator have an action of account against his co-administrator.

Mass. Stat. Feb. 6,

1784, sect. 17.

Action by residuary utors.

legatee against exec

Mass. Stat. Mar. 9,

1784, at 3, sect. 9.

Action by one admin

istrator against his

By statute it is enacted, that where two or more have letters of administration granted them of any intestate estate, and one or more of them take all or the greatest part of such estate, into his or their hands, and refuse to pay co-administrator. the debts or funeral charges of such intestate, or refuse to account with the other administrators, then and in such case, it shall and may be lawful for such aggrieved administrator to bring his action of account against the other administrator or administrators, and recover his proportionable share of such intestate's estate, as shall belong or appertain to him.

II. The pleadings.

The general issue, in this action, is, "that the defendant See Stor. Plead. 71. never was bailiff of the plaintiff ;"'—or “never was receiver 1 Selw. Abr. 4. of the plaintiff, &c."

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