Crook v. Pitcher

Robinson, J., delivered the opinion of the Court. The declaration contains two counts: — Eirst count for obstructing a right of way belonging to the plaintiff; and the second for obstructing a highway used by the plaintiff in going to and coming from the post-office, markets, •school, and hauling the produce from his farm, in consequence of which he was obliged to use a longer and more circuitous road. The way or road thus alleged to have been obstructed lies in Baltimore County, and the venue is laid and the suit is brought in the Court of Common Fleas of Baltimore City. The first question arising on the demurrer, is whether the plaintiff had ■ a right to sue the defendant in Baltimore City ? — and this depends upon whether the cause of action is local or transitory ? ⁵¹³ In the earlier history of the law, the plaintiff, it is well known, was required in all actions to state with the utmost certainty, not merely the county, but the particular district or hundred, within which the cause of action had arisen.

This was necessary in order that the sheriff might summon as jurors, persons from the immediate neighborhood, who were presumed to be acquainted with the nature of the transaction, which they were called upon to try, and who were liable to be attainted, if they rendered a wrong verdict. This was soon found, however, to be extremely inconvenient, especially in mixed transactions which might happen partly in one place, and partly in another, and hence, arose the distinction between local and transitory actions. If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisances, or for the obstruction of one’s right of way are according to all the authorities local.

On the other hand, actions for injuries to the person, or to personal property, actions on contracts, and in fact all actions founded on transactions, which might have taken place anywhere, are transitory. Mostyn vs. Fabrigas, Cowp., 161; Mayor, &c., of Berwick vs. Ewart, 2 W. Black., 1036; Com. Dig. Action N., 12.

Where the action is local, and the suit is brought in another place, the proper mode of taking advantage of the defect is by demurrer, and unless the defendant demurs, the defect will be cured by the Statute of Jeofails, 16 & 17 Car.

II

This was decided in The Mayor, &c., of London vs. Cole, 7 T. R., 588, in which Grose, J., said: “ I admit that where an action of covenant is brought on a privity of estate, and not of contract, the action must be brought in the county where the land lies; if it be not brought there, the defendant must take advantage of ⁵¹⁴ it before verdict, otherwise the defect is cured by the Stat. Car. II.” And again in Mayor, &c., of Berwick vs. Ewart, 2 W. Black., 1070, where the cause of action arose in Berwickupon-Tweed, and the venue was laid in Middlesex, to which the defendant filed a general demurrer, De Grey, Chief Justice, said: “It is admitted that actions properly local must be laid in the p'roper counties; otherwise it is-ground of demurrer.” The distinction between local and transitory actions still exists in this State. Sec. 87 of Art. 75, in part codified from the Acts of 1801, ch. 74, and 1787, ch. 87, provides, it is true, that no one shall he sued out of the county in which he resides, unless he has been returned non est on a summons issued in that county, provided that the section shall not apply to ejectment, dower, &c. This latter clause, however, does not include all the actions excepted from the operation of the section.

This is evident from, section 88, which provides that in trespass on real property, if the party committing the same, shall remove from the county where such property may lie,- or cannot be found in such county, he may he sued in any county where he may be found, &c. Patterson vs. Wilson, 6 G. & J., 499 . An action for obstructing a way or highway being local,, the suit must he brought in the county where the road lies, and the demurrer ought to have been sustained. It was further