that officer to "the coroner of the county or counties of, or any constable of the town or towns of," &c. or perhaps simply "to any constable," &c.

When the writ is legally directed to several officers in the same county, it may, of course, be served by either of them.

SECT. III. DATE OF WRITS.

A writ should be dated upon the day that it is in fact issued for service. And to make a writ valid, the day of its date must always be subsequent to the last day of service for the preceding term, and sufficiently anterior to the next return day of the court from which it issues, to allow service of it to be made the required number of days previous to that return day. The rules in relation to the time required between the service and return of writs will be stated under the head of the service of writs.'

SECT. IV. WHEN WRITS MUST BE MADE RETURN

ABLE.

All writs from the Supreme Judicial Court and the Court of Common Pleas, should be made returnable at the next succeeding term of the court, if issued a sufficient number of days before its sitting to allow legal service to be made, otherwise at the next following term. The time required between the service and

return of writs will be stated under the head of the service of writs.'

No time is limited by law, within which writs issued by a justice of the peace must be made returnable, only that the distance between the service and return shall not be less than seven days.

The form in the statute not only requires that writs from the Court of Common Pleas should be made returnable to the next court, as above, holden for the county, but also that the day of the week and the week of the month, when the court is to be holden, should also be specified. Where, however, mistakes are made by the attorney, who issues the writ,—as in making it returnable the second instead of the third Monday in the month, -the Court of Common Pleas allows the plaintiff to amend his writ on motion. As the term is fixed by law, the mistake is one of form merely and there is something to amend by.?

The same is true of writs issued from the Supreme Judicial Court.

A mistake in the return day of justice writs presents more difficulty. There are no terms fixed by law for holding those courts, and no means of ascertaining the time, except from the statement in the writ. A writ returnable Saturday the 17th, when the 17th was Sunday, would be clearly void, and if the 17th were Friday, it would seem equally so. A mere omission of the day of the week would be only a formal defect.

3

1 Vide Chap. X. Sect. II.

2 Vide Book II. Chap. on Amendment.

3 Vide Wellman v. Lawrence, 15 Mass. Rep. 326.

SECT. V. WHERE WRITS SHOULD BE MADE RE

TURNABLE.

In case of Individuals. When the plaintiff and defendant both live within the Commonwealth, all personal or transitory actions must be brought in the county where one of the parties lives. And when an action shall be commenced in any other county, than as above directed, the writ shall be abated, and the defendant allowed double costs. So if there be several plaintiffs or several defendants, or both, and all living within the Commonwealth, the action must be brought in a county where some one of the plaintiffs or defendants dwells.

If the plaintiff, where there is but one, or all the plaintiffs, where there are several, live without the Commonwealth, the statute does not apply, and transitory actions may be brought, as before, in any county, at the election of the plaintiff or plaintiffs. But if one or more of several plaintiffs live within the Commonwealth, the action must be brought either in the county where the plaintiffs live, or in that of any of the defendants who reside within the Commonwealth.2

The foregoing rules are construed to apply to transitory actions merely; such personal actions as were local, at common law, remain so, and must still, except before justices of the peace, be brought in the county where the cause of action arises.3

Against Justices, Officers, &c.

Actions against

1 Stat. 1784. ch. 28. s. 13.

2 Day et al. v. Jackson et al. 5 Mass. Rep. 237. 3 Pearce v. Atwood, 13 Mass. Rep. 324. Rep. 229.

French v. Judkins, 7 Mass.

justices, sheriffs, constables and other officers, for official acts, are transitory and not restricted to the county where the acts took place, the English Stat. 21. Jac. 1. ch. 12. having never been adopted here,'

2

In case of Corporations. In the case of The Taunton and South Boston Turnpike Corporation v Whiting, it was holden that the plaintiffs, having no commorancy, were not within the purview of the statute, and might bring their action in any county.

Whether this decision applies to all corporations, as not capable of commorancy, or whether such as are strictly local, as towns, districts, &c. are within the statute, does not seem to have been discussed. In the case of The Proprietors of the Kennebeck Purchase v. Crossman,3 the court took a distinction with respect to the taxation of costs for travel, that corporations, not such in virtue of their locality, having no particular place of residence, and the corporators not being such in right of their place of abode, should have no cost allowed for travel to attend court.

4

In the case of The Hope Insurance Company v. Boardman et al., it was holden that the jurisdiction of the Federal courts, in suits brought by or against corporations, depended upon the citizenship of the individual members.

In penal actions.

By Stat. 1788. ch. 12. s. 2. in all penal actions the offence must be alleged to have been committed in the county where it was in truth committed. The action therefore must always be

1 Pearce v. Atwood, 13 Mass, Rep. 324. French v. Judkins, 7 Mass. Rep. 229.

4

29 Mass. Rep. 321.

36 Mass. Rep. 458.

5 Cranch. Rep. 57. Bank of the United States v. Deveaux et al. Ib. 61. The Corporation of New Orleans v. Winter et al. 1 Wheat. Rep. 91.

brought in that county; and if the plaintiff shall not both prove the offence laid, and that the same was committed in that county, the issue shall be found for the defendant..

On judgments: By Stat. 1795. ch. 61. actions of debt: upon judgments of the courts of this Commonwealth, which by the common law, are local,1· may be brought in the same court, or before any court of record for the county, in which either of the parties to such judgment, their executors or administrators shall reside at the time of bringing such action; and upon the judgment of any court of record of the United States, or of any of the states, an action may be brought in any county, where either of the parties, their executors or administrators may reside, or in which any valuable goods, credits or estate of any debtor in such judgment shall be found. This statute gives the plaintiff much less latitude, where one of the parties lives out of the state, than he enjoys in bringing transitory actions. Actions on foreign judgments, strictly so called, fall within the latter class.

In actions by and against Counties. By Stat. 1809. ch. 128. s. 1. any action local or transitory against the inhabitants of any county in their corporate capacity, may be commenced either in the county where the plaintiff lives, or in the defendant's county, at the plaintiff's election; and when brought by any county, may be commenced in the county where the defendant lives, unless he lives in the same county, in which case, it may be brought in either of the adjoining counties.

By sect. 2. of the same statute when any corporation shall be a party to an action commenced by or against any county, the action shall be commenced in an adjoin

11 Chitt. Plead. 272.