15 Mass. 354 (Mass. 1819), Barrell v. Benjamin

Citation:15 Mass. 354
Opinion Judge:Parker, C. J.
Party Name:Theodore Barrell v. Park Benjamin
Attorney:Hubbard, for the defendant, Ward for the plaintiff.
Court:Supreme Judicial Court of Massachusetts

Page 354

15 Mass. 354 (Mass. 1819)

Theodore Barrell


Park Benjamin

Supreme Court of Massachusetts, Suffolk and Nantucket

March, 1819

This was an action of assumpsit; and while on trial before the jury, the question arose whether this Court had jurisdiction of the suit. In order to have this question settled by the whole Court, the parties agreed on the following statement of facts: --

Barrell, the plaintiff, is a native citizen of the United States, having been born within this commonwealth: but at the time when this action was commenced, and long before, he lived in the town of Norwich, in the state of Connecticut.

The defendant, Benjamin, is a native citizen of the state of Connecticut; but more than twenty years past has had, and still has, his domicile in Demerara; although, when this action was commenced, he was in Boston, on his way to Demerara; and the plaintiff's writ was served by arresting his body.

The plaintiff and defendant were partners in a house in Demerara, jointly carrying on commerce there as partners for many years before the year 1807, when their copartnership was dissolved. This action was commenced and prosecuted to recover the balance supposed to be due, from the defendant to the plaintiff, on settlement of their accounts. When the British took possession of the colony of Demerara, in the year 1803, the said Benjamin took an oath of allegiance to that government.

If the Court should be of opinion that they ought to hold jurisdiction of the action, it was agreed that the defendant should be holden to render his account, and that auditors should be appointed to audit the same. But if the Court should be of a different opinion, the plaintiff was to become nonsuit, and the defendant recover his costs.

Defendant accounted and auditors appointed.

Hubbard, for the defendant, contended that the plaintiff was to be considered merely as a foreigner, having no other rights than any alien friend, any thing in the constitution or laws of the United States notwithstanding. The defendant is also a foreigner; and, in the event of a war between the United States and Great Britain, he would be an alien enemy. Both parties being foreigners, their being accidentally in this commonwealth cannot give jurisdiction to its courts, who were not appointed to determine controversies in which its citizens have no interest.

The Court cannot take cognizance of the contract attempted to be enforced in this action, which was not made here, not to be executed or performed here, nor with reference to our laws. If the Court should entertain jurisdiction of the cause, it must be tried and determined by the law of the country where it was made, and where it was to be executed. 1

The objection goes in bar of the action, and not in abatement, for no court in the commonwealth can take cognizance of it. 2

It is not contended that, if the defendant had come into this state with a view to take up his residence here, he would not be answerable in this action; but being transiently here, and merely passing through the state on his way home, he cannot be held to answer to another foreigner, also accidentally here. 3 By the law of this commonwealth, Stat. 1795, c. 61, § 2, the action upon a judgment of a court of record in any other of the United States is to be sustained here only when the defendant dwells or resides here, or has valuable property here. Neither of these facts exists in the present case.

Ward for the plaintiff.


Page 355

Parker, C. J.

Upon the facts agreed in this case, the defendant's counsel has argued against the jurisdiction of this Court, both from the nature of the contract, and the situation of the parties; and has cited some authorities in support of his argument.

Page 356

Upon examining them, however, and such others as can be found bearing upon the question, it does not appear that any direct decision has been had upon this subject. Indeed, it would seem, from the entire want of authorities in the English books, that the question has never been raised there; and the presumption is violent, that the jurisdiction of the common-law courts in such a case would not be doubted.

In the case of Melan ...

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