Clark v. Scudder

72 Mass. 122

Opinion

Metcalf, J.

This case cannot be distinguished from that of Lienow v. Ellis, 6 Mass. 331, where it was decided that an action of covenant concerning land, brought by the assignee of the covenantee against the covenantor, was local, and could be maintained only in the county where the land was situate. The same point was decided in the same way in White v. Sanborn, 6 N. H. 220, and Birney v. Haim, 2 Littell, 262. There is no privity of contract between the plaintiff and the defendants, but merely a privity of estate; and when an action is founded on privity of estate only, it is local, as is shown not only by the above cited cases, but by numerous other books. 1 Tidd’s Pract. (1st Amer. ed.) 373. 1 Selw. N. P. (11th ed.) 517. 1 Saund. Pl. & Ev. (2d ed.) 865. Mayor &c. of Berwick upon Tweed v. Shanks, 3 Bing. 460. The plaintiff contends, however, that as both he and the defendants are inhabitants of this state, he is without remedy, unless he can maintain an action here; and that, for this reason, the court should sustain this action. Lord Mansfield once yielded to this consideration (Cowp. 180) at nisi prius, but he was overruled. Doulson v. Matthews, 4 T. R. 503. See also Shelling v. Farmer, 1 Stra. 646 ; 1 Chit. Pl. (6th Amer ed.) 302; Story Confl. § 554. Nonsuit to stand.