3 Denio 279 | N.Y. Sup. Ct. | 1846
Is there evidence showing that Eckart was one of the members of the firm of James Gibb & Co. who signed and made the contract with the plaintiff, on ’ which he sues? If not, there must be a new trial on that ground. The judge charged that the decree in chancery established that fact conclusively. Conceding that it does in terms, It is still objected that it is void on the ground that the vice chancellor, before whom the bill was filed and by whom the decree was made, had no jurisdiction of the subject matter, or of the defendants.
The vice chancellor had only such jurisdiction as is conferred by statute. (2 R.S. 168, § 2.) That limits it to three cases: 1. Where the causes and matters shall have arisen within his circuit; or 2. When the subject matter in controversy is situated
Enough should appear from the bill to show that the vice chancellor before whom it was filed had jurisdiction. It cannot be presumed. Jurisdiction was not acquired by reason of the residence of the defendants, or either of them, within his circuit ; for the bill states that they resided in Canada. It was not acquired by reason of the locality of the subject matter of the bill, as it had no locality, and therefore could not have been situated within the circuit of the vice chancellor; nor is there any allegation of that kind in the bill. Does it appear by the bill that the cause or matter of complaint arose within the fifth circuit? If not, it follows that it is not shown by the bill that the vice chancellor had jurisdiction. The bill fails to show a single fact happening within the fifth circuit in relation to the subject matter of the complaint. It is not even alleged that the. contract between the plaintiff and Gibb & Co. was" made within that circuit ; though by the evidence it appears to have been made at Oswego. The bill was for an account and payment to the plaintiff of one third of the net profits realized by the defendants upon the sale of certain flour which the plaintiff had delivered to them at Kingston, Upper Canada, pursuant to their contract, and which the defendants had received and were bound by the contract to pay the plaintiff -upon such sale at that place. The cause and matter in equity in that suit, as disclosed by the bill, clearly arose in Canada. That was the place where the contract was to have been performed and where the breach of it was committed. That breach, and not the making of the contract, was the matter or cause of complaint.
My conclusion is that the vice chancellor is not shown to have had jurisdiction; consequently his decree is void, and cannot avail the plaintiff for any purpose. (Borden v. Fitch, 15 John. 121; Mills v. Martin, 19 id. 33; Latham v. Edgerton, 9 Cowen, 227; Cowen & Hill’s Notes, p. 826.) A new trial must be granted on this ground, which renders it unnecessary to examine other questions made in the case.
New trial granted.
