
    Alexander Rea versus Samuel Hayden.
    A plea to the jurisdiction of the Court in a transitory action must show that some other court of the nation hath jurisdiction.
    [f no court of the nation has jurisdiction, the defendant may avail himself of this defence under a plea which goes to the action.
    Case upon a promissory note. The plaintiff calls himself of Charlotte-Town, in the province of Nova Scotia, within the British dominions. The defendant is named of Boston, in this county. The note declared on purports to have been made at Charlotte-Town, June 6, 1792, for £36, * Halifax cur- *35 rency, payable to the plaintiff in ten days from the date, and subscribed by the defendant.
    The defendant pleads to the jurisdiction of the Court tnat, &l the time when the supposed promise was made, the p’áintííf and defendant were, and still are, both aliens and subjects of the United Kingdom of Great Britain and Ireland; that the said promise, if made at all, was made at Charlotte-Town, aforesaid; that the cause of action accrued, if at all, at said Charlotte-Town, in the province of Nova Scotia, aforesaid, and within the jurisdiction of the courts of Great Britain, and not within the jurisdiction of this Court. And this he is ready to verify. Wherefore he prays judgment if the Court here will take any cognizance and jurisdiction of the said action.
    To this plea the plaintiff demurs generally, and the defendant joins in demurrer.
    
      
      Heard, in support of the plea,
    cited the .case of Irving vs, Frazier &f Al. and Trustees, in this Court in Essex 
      , [ * 26 ] * in which a similar plea was adjudged good, and the writ abated.
    
      
      
        Story's Selection of Pleadings, 9.
      Since this cause was argued, the reporter has been favored by the defendant s counsel with a copy of the record in the case of Robertson vs. Kerr, in this Court, Feb. 1793. This was an action between two alien friends, upon a promise made in their own country, and brought here, upon some property of the defendant’s being found here. It was submitted to the Court, after argument upon the case stated. The opinion of the Court was, that they had no jurisdiction of the action.—Minot, for the plaintiff; Amory, for the defendant.
      In the case of Walton vs. M'Neil, the declaration was upon promises made at Quebec, viz., at Boston. The action was brought in the Circuit Court of the United States, holden at Boston, June, 1794. The defendant pleaded to the jurisdiction of the Court, that the parties were both inhabitants of Quebec, and that the cause of action, if any, accrued in Canada, and not within the United States, and that conu sanee thereof belonged to the courts of Great Britain, and not to any of the courts of the United States. To this plea there was a demurrer and joinder. The judgment was, “ that the plea in bar is good, and that the Court will take no further conusance of this suit. And that the defendant recover his costs.”
      In the case of Fields vs. Taylor & Al. in United States Circuit Court, Oct. 1799, the plaintiff named himself of London, and the defendants of Manchester, both in England, and declared on two notes made and endorsed in England. Tne defendant Taylor, in his proper person, pleads to the jurisdiction of the Court that the causes of action accrued to the plaintiff at Manchester, &c., and out of the jurisdiction of this Court, and that since the said notes become due, he, Taylor, came to Boston to reside, and is now there with the property only brought with him. The plaintiff, in his replication, confesses that the causes of action accrued at Manchester, &c., bm Inasmuch as the defendant has, by his own showing since that time, come to reside in Boston, he prays judgment whether the Court will not take cognizance, &c. And pfler hearing the parties by their counsel, the Court adjudged the plea in bar a good and sufficient answer in law to the plaintiff’s declaration, and that he ought not to have or maintain his action, &c.
      It may be well to observe that these decisions in the Circuit Court were not founded on the principles of the common law, but on the limited jurisdiction of the courts of the United States, under the constitution and statutes thereof.
    
   The opinion of the Court was delivered by

Parsons, C. J.

In the writ, the plaintiff is named of Charlotte-Town, in Nova Scotia, in the dominions of the king of Great Britain, and the defendant is called of Boston, in this county. The action is transitory, the plaintiff counting on a promise made by the defendant to him at Charlotte-Town, to wit, at said Boston. The allegations in the plea to the jurisdiction are that the parties, at the time when the promise was made, were, ever since have been, and now are, aliens and subjects of the said king; and that the cause of action, if any, accrued to the plaintiff within the jurisdiction of the courts of the said king, and not within the jurisdiction of this Court. To this plea there is a demurrer and joinder.

A plea to the jurisdiction in a transitory action is proper when some court of the nation has jurisdiction of the cause of action, but not the court in which the suit is instituted. The plea must therefore allege that some other court of the nation has jurisdiction. But if no court has jurisdiction of the cause of action, then, by the law of the land, the action cannot be maintained ; and the defendant may avail himself of this defence under a plea which goes to the action. We are, therefore, of opinion that the plea is bad; the defence, which the defendant intended to make, not being a legal foundation for a plea to the jurisdiction in this action.

Selfridge, for the plaintiff.

Pleas to the jurisdiction of this form have sometimes been made, and no exception being taken to the form, they have been considered upon their merits ; but they cannot be considered as a precedent of any authority. The defendant must answer farther.

If it should appear, on a trial of the merits, which seems to be aumitted by the plea, that the defendant, after the making * of the contract declared on, had removed to this state, [ * 27 ] and now dwells here, the Court will decide whether, by our laws, he is protected from all suits on contracts made with his fellow-subjects before his removal .

Defendant’s plea bad. 
      
      
        Barrell vs. Benjamin, 15 Mass. 354.—Tingley vs. Bateman, 10 Mass 343.— Lawrence vs. Smith, 5 Mass. 362.—Gardner vs. Barker Trustees, 12 Mass. 36-. Jacob & Al. vs. Mellen Trustees & 14 Mass. 132.—Ed.]
     