Peabody v. Hamilton
106 Mass. 217
Mass.
1870
Check Treatment
Wells, J.

That both parties are foreigners is no ground for dismissing the writ. Roberts v. Knights, 7 Allen, 449. It is not necessary that a foreign plaintiff should be persоnally within the jurisdiction, in order to institute an action. The statute requires only that he shall furnish an indorser to his writ, who is an inhabitant of the state. Gen. Sts. c. 123, § 20.

Personal actions, of a transitory nature, may be maintained in any jurisdiction within which the ‍​‌​‌‌​​‌​​‌‌‌‌​​​​​‌​​​​‌‌‌​​​​​‌​​‌​​​‌‌​‌‌​‌‌​‍defеndant is found, so that process is legally served upon him. Story Confl. Laws, §§ 543, 554. Barrell v. Benjamin, 15 Mass. 354. Wright v. Oakley, 5 Met. 400. This we understand to be the general rule of thе common law. Such is also the clear implication of the statutes of this Commonwealth. The restriction in Gen. Sts. c. 126, § 1, that a party defendant must have been, before the time of action brought, an inhabitant of the state, or that an effectual attachment must be made of his goods, estate or effects, has applicаtion only to actions “ against a person who is out of the state at the time of the service of the summons.” When the party is in the state, however transiently, and the summons is ‍​‌​‌‌​​‌​​‌‌‌‌​​​​​‌​​​​‌‌‌​​​​​‌​​‌​​​‌‌​‌‌​‌‌​‍actually served upon him there, the jurisdiction of the court is complete, as to the person of the defendant. In the numerous discussions of the force *221аnd effect of judgments rendered in one of the United States against citizens of another state, this has been rеpeatedly and always recognized as sufficient to give full jurisdiction in transitory actions. Hall v. Williams, 6 Pick. 232, 241. Gleason v. Dodd, 4 Met. 333, 338. Ewer v. Coffin, 1 Cush. 23. Barringer v. King, 5 Gray, 9. Carleton v. Bickford, 13 Gray, 591.

We do not find that the statement of the case in Barr ell v. Benjamin bears out the assеrtion upon the defendant’s brief, that it was a case where “ both parties were transiently resident here.” On thе contrary, it does not appear from the agreed facts that the plaintiff, who resided in Connecticut, was at the time in Massachusetts at all; and the defendant, a native of Connecticut, then a resident of Demarara, at the time of his arrest “ was in Boston, on his way to Demarara.” The objection of the defendant, as stated by the court, was, that he was not resident in the state, but was arrested “ when here only for the purpose of embarking for Demarara.” And the court say: “We see no way of upholding the distinction, and there is nothing to be found in the books to support it.”

Some consideration, it is true, was given in that case to the fact that thе plaintiff was a citizen of a sister state, and as such, under the Federal ‍​‌​‌‌​​‌​​‌‌‌‌​​​​​‌​​​​‌‌‌​​​​​‌​​‌​​​‌‌​‌‌​‌‌​‍Constitution, entitled to all the rights of a citizen of Massachusetts. But the right of a nonresident to sue in our courts is not regarded, in Roberts v. Knights, 7 Allen, 449, as depending upon considerations of that nature. We cannot consider the fact that the plaintiffs in this case were residents of a foreign country, as having any weight upon the legal question of jurisdiction.

The defendant calls attention to a remark of the court in Putnam v. Dike, 13 Gray, 535, 536, as indicating that upon a plea to the jurisdiction the action could not have been maintained against a nonresident, if he had never bеen an inhabitant of the state and there was no effectual attachment of his property in the suit. But in that сase, as it is stated by the court, there was “ no evidence to show that the defendant ever came within thе limits of this state.” Of course there could have been no service of the summons upon him. It appears from the files of that case, that there was in fact no such service.

*222Upon the question of jurisdiction, in its international aspect, we are satisfied that the service ‍​‌​‌‌​​‌​​‌‌‌‌​​​​​‌​​​​‌‌‌​​​​​‌​​‌​​​‌‌​‌‌​‌‌​‍of the process, by summons merely, is equally effective with an attachment or arrest of the body.

The defendants contend that service by a separate summons, after a nominal attachment only, is not authorized by the statute. Gen. Sts. c. 123, §§ 10, 11. The proceeding is, in form, a literal compliance with the statute. We understand it to be in accordance with long established general рractice. Howe Pract. 61. It appears to be recognized as a proper mode of service. Belknap v. Gibbens, 13 Met. 471, 475. Orcutt v. Ranney, 10 Cush. 183. No case is cited in which it has ever been held that such service is not good. The language of the provision does not necessarily import “ ‍​‌​‌‌​​‌​​‌‌‌‌​​​​​‌​​​​‌‌‌​​​​​‌​​‌​​​‌‌​‌‌​‌‌​‍an effectual attachment,” such as is required to give jurisdictiоn against an absent defendant who was never an inhabitant. See Gen. Sts. e. 126, § 1. For the purpose of determining the proper mode of service, the return of the officer, that he had attached the property of the defendant, cannot be contradicted by evidence, and is not contradicted by the apparent want of value in the article returned as attached.

The defendant also objects to the serviсe, because it was made upon him while he was still on board a British mail steam-vessel, and “immediately after sаid steamer had reached her dock in East Boston, and before she was moored to her dock.” But we are unable to see any force in this objection. Whatever jurisdiction the English courts may be authorized to еxercise over controversies arising between English subjects or others on board English vessels while in foreign pоrts; and whatever comity may be properly exercised in remitting such controversies for adjudication to the domestic tribunals; there can be no doubt that the defendant was strictly within the jurisdiction of this court, liable to its рrocess, and that he was properly served with it on board the foreign vessel. Commonwealth v. Peters, 12 Met. 387. But if there were any discretiоn in the court, as a court of law, in regard to the matter, either on the ground of general comity, or of the nature of the controversy, the question is not presented upon a plea in abatement for insufficient or defective service of the writ. Demurrer sustained.