Cochecho Railroad v. Farrington

26 N.H. 428

• Court: Superior Court of New Hampshire
• Decided: July 15, 1853
• Status: Published

Opinion

Eastman, J.

The practice of the courts of England to change the venue of transitory actions from one county to another is said to have been first commenced in 1603, in the reign of James I. 2 Black: Rep. 1033; 2 Salk. 670 ; 1 Bac. Ab. B. 35.

The practice is also said to have grown up under the statutes of 6 Richard II. chap. 2, and the 4th of Henry IY. chap. 18. Gould’s- Plead, chap. 3 § 103 note 19 ; 1 Tidd’s Prae. 544; 3 Black. Com. 294.

But whenever or however the practice originated, it became thoroughly engrafted upon the common law, long before the independence of this country; and from that time forth, not only has the practice prevailed in the courts of England, but the power is now exercised by the courts of very many if not all of our States, either by force of express statute or the adoption of the common law into the jurisprudence of the same.

In this State we have no statute giving our courts the power to change the venue except in one class of eases; and in that class the courts are required to do it upon motion. By § 15 chap. 66 Rev. Stat. it is provided that “ where- any county in which any action for the support of a pauper is pending, may eventually be liable for the support of such pauper, under any law of this State, the court shall, on motion, transfer-such action to an adjoining county for adjudication.”

This being the only authority given by the statute of this State, the question arises whether we have the power to change the venue or transfer an action from one county to another, except in the class of cases referred to.

In 1692, by an act of the provincial legislature, passed on the 16th of October of that year, it was enacted and ordained that there should be held and kept a supreme court of judicature, and that there should be four justices, at the least, appointed and commissioned, which supreme court' was fully empowered and authorized to have cognizance of all pleas, civil, criminal and mixed, as fully and amply to all intents and purposes whatsoever, as the courts of king’s bench, common pleas and exchequer within their majesty’s kingdom of England had or ought to have.

The same act provided that the courts of common pleas should have jurisdiction to hear, try and formally determine all actions and causes of action, and all matters and things and causes triable at the common law, of what matter or kind soever, not exceeding twenty pounds.

In 1699, an inferior court of common pleas and a superior court of judicature were established, and their powers enumerated, substantially in the same words as in the act of 1692.

The act of 1699 remained in force until March, 1771, when the “ act for dividing this province into counties and for the more easy administration of justice,” was passed. The second section of that act provides that instead of the several courts of judicature now established and holden, there shall be and hereby are established to be holden one superior court of judicature, also an inferior court of common pleas and one court of general sessions; all which courts shall respectively hold and exercise like jurisdiction and authority within their respective counties, in all matters and causes arising within such counties, as the superior court of judicature, inferior court of common pleas and court of general sessions of the peace now respectively hold and exercise, or by law ought to hold and exercise. The organization of the courts, which was made by this act, was done to perfect the system so as to conform to the situation of things occasioned by the division of the province into counties. The general powers of the court were not changed.

It would seem clear, then, that under the provincial government, after the division into counties, the superior court and common pleas possessed the same power to change the venue as did the courts of England; provided that the common law was then in force in the province, and provided also that there was no provincial statute to prevent the exercise of the power.

As to the adoption of the common law, there would appear to be no doubt. The charter of “ the council established at Plymouth, in the county of Devon, for the planting, ruling, ordering and governing of New England in America;” the commission constituting a president and council to take care of the tract of land called the Province of New Hampshire, and of the planters and inhabitants thereof, and to order, rule, and govern the same, and the first enactment of the general assembly, convened in pursuance of the charter, all show that the body of the English common law and the statutes in amendment to it, so far as they were applicable to the government instituted here and to the condition of the people, were in force here as a part of the law of the province, except where other provision was made by express statute or by local usage. State v. Hollins, 8 N. H. Rep. 550; Sackett v. Sackett, 8 Pick. 315; Commonwealth v. Knowlton, 2 Mass. 534.

It is, however, contended in argument that by the act of' March 19, 1771, by which the province was divided into counties, the powers which had been exercised by the courts of-England, after the passage of the statutes of Richard II and Henry IV, were entirely superseded ; so that, in fact, our courts have never had the authority to change the venue since the division of the province into counties, and that before the division there was no occasion to exercise the power.

The clause of the act upon which this argument is founded is as follows: “ All transitory actions wherein both parties are inhabitants of this province, may be commenced in the eounty wherein either of the parties to the suit shall be inhabitants and not elsewhere in this colony.” Prov. Laws 204. These provisions were reenacted by the statute of 1791, and are substantially the same as those of section 1, chapter 180 of the Revised Statutes.

The first reading of this provision of the act might create the impression that it contained an implied prohibition of the transfer of an action from one county to another; but it will be perceived that the enactment is confined to the commencement of actions merely; and it is but a fair inference that had the provincial legislature intended to have restricted the trial of actions to the county in the same manner that they did their commencement, they would have so enacted. The provisions are much in principle like those of the 6th of Richard II and the 4th of Henry IV, and being enacted with a full knowledge of the practice of the courts under those statutes, they were designed, we think, to make the law of the province, in this respect, substantially the same as that of England. At all events, we do not think that the true reading of the provisions of the act relied upon, will sustain the construction that the trial of actions shall be absolutely confined to the counties where they were commenced; and we think that the courts of the province had the power to change the venue.

Such was the state of the law at the time of the revolution, and such the power of the courts ; has there been any change since ?

On the 5th of July, 1776, an act was passed “ for establishing courts of law for the administration of justice within this colony.” The preamble and first section were as follows : “ Whereas the cruel and unnatural war commenced and prosecuted by Great Britain against the United Colonies, hath rendered it necessary for the protection and security of the lives and interests of the inhabitants of this colony, to assume] and establish a new form of government therein, for the administration whereof it is equally necessary and expedient to establish courts of justice: Therefore be it enacted by the Council and House of Representatives in General Court assembled, that instead of the several courts of judicature heretofore established and holdenbythe laws of this colony under the former government thereof, in the several counties therein, shall be and hereby are established to be holden, one superior court of judicature ... of four justices, to be appointed and commissioned thereto by the Council and House of Representatives of said colony. .... Also an inferior court of common pleas .... and one court of general sessions. All which courts shall respectively hold and exercise like jurisdiction and authority within their respective counties, in all matters and causes arising within such counties, as the superior court of judicature, inferior court of common pleas, and court of general sessions of the peace, heretofore respectively held and exercised within this colony, or by law ought to hold and exercise.”

The next act on the subject was passed February 9th, 1791, and was an act for establishing courts of law for the administration of justice within this State, and designating their powers and regulating their proceedings in certain cases.” This act established a court of common .pleas, to try all cases of the value of more than forty shillings, triable by common or statute laws. Also a superior court, with all the powers and authority which the superior court of juditure within the State had previously held and enjoyed, or by law ought to hold and enjoy.

This act remained in force until June, 1813, when the judiciary of the State was re-organized, by the establishment of a supreme judicial court and circuit courts of common pleas. .These courts had the same powers vested in them as the superior court o.f judicature and the court of common pleas had previously exercised. The act of 1813 was repealed in 1816, and the former system revived, and continued in force until 1832. The system then established has substantially remained until the present time, the appointment of circuit justices affecting in no way the powers of the superior court or the common pleas; and an examination of all the several acts that have been passed upon the subject since the act of 1771, will show that the powers of the courts have not been abridged.

The history of the adoption of the common law since the commencement of the revolution, appears to be-as follows. In September, 1776, the declaration of independence was read and published in the assembly, and the colony then assumed the name and style of the State of New Hampshire. In April following, a formal act was passed, “ for the reestablishing the general system of laws heretofore in force in this State,” and provided “ that all . the acts and laws in force in this State (at the time the present form of' government was assumed) with every article, direction and power in the same contained, so far as they are not repugnant to and incompatible with the present form of government in this State, its independence of Great Britain, or-are not repealed and disannulled or altered by any act or law made and passed by the Council and House of Representatives of this State since the said assuming of government, be revived, be enacted, directed and ordered to abide and remain in full force, and accordingly to be .exercised, practised and put iñ execution,” &c.

Prior to the passage of this act of April, 1777, there had-been in full force here, the common law, so far as it was applicable to our institutions; the English statutes made an. amendment of it before the emigration, and of course the-statutes of Richard II. and Henry IV., before referred to; such also of the English statutes, made after the emigra- • tion, as were adopted in practice, and others made specially for the government of the colonies; also the acts of the assembly of the colony and those of the infant State; and to a limited extent, some provisions of the civil and ecclesiastical law; and this act of 1777 reestablished these laws, so far as they were not repugnant to the new form of goverment, and ordered that they should be exercised, practised and put in execution. Per Parker, C. J., in State v. Rollins, 8 N. H. Rep. 563, 564.

There would certainly seem to be no doubt that the common law was embraced in this enactment of 1777.

Next follows the constitution of 1783, in which is contained the provision that “ all the laws which have heretofore been adopted, used and approved, in the province, colony or State of New Hampshire, arid usually practised on in the courts of law, shall remain and be in full force until altered and repealed by the legislature; such parts thereof only excepted as are repugnant to the rights and liabilities contained in this constitution.”

This provision of the constitution was evidently intended as a substitute for the act of April, 1777, and, as was said in State v. Rollins, we think the previous history upon this subject leaves no good reason to doubt the soundness of this con•clusion; for we can imagine no reason why the framers of ■the constitution should have intended to introduce a rule different frpm that of the act of 1777, and one which would confine and limit the operation of the common law to such of its particulars as could be shown to have been the subject of actual and usual practice, prior to that period.

The provisions of the constitution of 1783 are. also those of the constitution of 1792, which is now the fundamental law of the State, and, consequently, according to our views, the body of the common law, as embraced in the act of 1777, and in the constitutions of 1783 and 1792 is in full force, except where the same may have been changed by subsequent acts of the legislature.

The result of our examination, then, is, that from the acts organizing the judiciary, as well of the province and colony as of the State, and the powers that have from, time to time been conferred upon and declared to exist in the courts, there would be nothing to prevent this court from ordering a venue to be changed, were it to assume the duties of a nisi prius court; nor is'there anything in the organization of our common pleas which precludes them from exercising the power, that court being a court of common law, and being governed by the rules and principles of the superior court, in all matters in which it has jurisdiction. Unless, therefore, we have some statute prohibiting the exercise of this power, or which, by implication, prohibits it, it may be exercised in all proper cases.

The only statutes that we have been able to find which have a bearing upon the question, are those whieb have already been alluded to, being, first, the provincial statute of March, 1771, providing that transitory actions may be commenced in the county where either of the parties may be inhabitants and not elsewhere, as also the act of 1791 and chapter 180 of'the Revised Statutes, containing substantially the same provisions as the1 act of 1771and second, the statute in regard to the trial of pauper cases, where the county may eventually be liable.

With respect to the acts of 1771,1791 and the provisions of the Revised Statutes, we have briefly stated our views, and expressed the opinion that they do not prohibit the court from changing the venue, although they confine the parties to specific counties in the commencement of actions. As to the statute respecting the trial of pauper cases in certain events, the Legislature saw fit to make it imperative upon the court to transfer the action on motion. It seems that they thought it essential to a fair trial, in that class of cases, th'at they should be transferred, and so did not leave it to the discretion of the court. Perhaps no argument of much weight can be drawn from this enactment in regard to the question before us, but it may as fairly be contended that the Legislature left it to be inferred that the court had discretionary- power in ordinary cases, as to say that this exclusive enactment shows that the power is not to be exercised except in this class of cases alone. It is clear that they did not suppose that there was any constitutional difficulty in the way.

It may also be fairly argued from the 17th article of the bill of rights, that the convention adopting the constitution intended to leave the regulation of the matter in civil actions to the court. That article contains a requisition for the trial of criminal offences in the county in which they are committed, except in cases of insurrection, when the Legislature are authorized to change the venue upon the representation of the judges of the superior court that an impartial trial cannot be had. From this it may be presumed that if the convention had not intended not to interfere in the matter of civil actions, they would have inserted some provision in regard to them, as well as definitely settling the question in respect to criminal prosecutions.

In view of the whole subject, we think there can be no doubt of the power of the court in the premises, and that the venue may, in all proper cases in civil actions be changed. But what may be a proper case is a question of importance, and one which, under all the circumstances, must be judged of and decided by the court upon the facts presented.

We are not aware that a motion of this kind has ever heretofore come before this court, and we may certainly regard it as a compliment to the intelligence, impartiality and candor of our jurymen generally that it has not. Still, cases may arise where it will be proper for the court to interfere. As the population of some of our smaller counties becomes more dense, and the business interests of the larger towns and cities become more intimately connected with the remote sections of the counties, so that excitements, partialities and prejudices may generally pervade society, it will be more difficult to obtain impartial juries, and still more difficult to satisfy parties that they have had fair trials.

The grounds upon which venues have been changed have been, first, for the purpose of securing fair and impartial trials. It is discretionary with the court to grant the motion or not; but when it is made to appear that an impartial trial cannot be had without the change, the motion will be granted. Mayor of Poole v. Bennett, Strange 874; Mylock v. Saladine, Burrows 1564; 1 Wilson 298; 1 Cromp. Prac. 110; Graham’s Prac. 464.

But in order to induce the court to change the venue, on the ground that a fair trial cannot be had in the county where the venue is laid, the fact alleged must be made conclusively to appear. New Windsor Turnpike Co. v. Wilson, 3 Caines 127; Zabriskie v. Banden, 1 Caines 487; 2 Johns. Cases 335; 2 Caines 46; Messenger v. Holmes, 12 Wend. 203; Murry v. The New Jersey Railroad and Transportation Co. 3 Zabr. 63; State v. Burris, 4 Harr. 582; People v. Bodine, 7 Hill’s 147; Bank of Cleveland v. Ward, 11 Ohio 128; Bowman v. Ely, 2 Wend. 250. In the last case cited, Marcy, J., in delivering the opinion of the court uses this language: “ The court will not, on any speculative opinions formed by individuals, however respectable, interfere with the ordinary course and practice of the court in the administration of justice. Pervading as may be the excitement referred to, the court repose confidence in the intelligence and integrity of the freeholders of Monroe. Should it unfortunately happen that the apprehension of the plaintiff (the disagreement of the jury) is realized, he will not be remediless, as it will then be in sufficient time to interpose the strong arm of the law, to cause the course of justice to flow unpolluted by passion or prejudice.”

The venue is also changed for the convenience of the parties and witnesses. This is a well established practice in some jurisdictions. But however expedient and necessary this practice’may be in large states, in this State, where the county seats may be reached in a single day, from its remotest towns, and where the depositions of witnesses, in civil actions, who reside more than ten miles from the place of trial may be taken, it is not probable that any motion of the kind would be granted. To transfer actions from one county to another for this reason only, would oftentimes derange the dockets of the counties, and impose upon small counties burdens which would not fairly belong to them, and which would in some instances be extremely onerous.

In the case before us, the application to change the venue is founded upon the alleged fact that a fair and impartial trial cannot be had in Strafford; and, upon the principles which we have laid down, the motion should be granted, if . the court find the fact to be as the defendant alleges.

Strafford county contains thirteen towns. The Cochecho Railroad corporation are the plaintiffs, and the action is brought to recover assessments upon shares in the road, subscribed for by the defendant. The road passes through four of the towns of the county, one of which, Dover, is much the largest in population of any in the county, and the most important in its business relations. Rochester, another of the four, is the residence of the defendant, and is the third town in the county. One of the others is the seventh in population, and the other is the tenth.

The defendant produced, in support of the motion, a large number of affidavits, from which it appears that the subject matter of his liability to the plaintiffs has been very often spoken of and discussed and opinions expressed in the plaintiffs’ ears, at the several stations of the road, and in public places in the four towns through which the road passes. His affidavits also show that his liability has been somewhat discussed in some of the other towns, but not to any general extent. The plaintiffs, in opposition to the motion, produced several affidavits, tending to show that in towns through which the road does not pass, the subject of the suit has not been a matter of discussion ; also that the suit has not been so extensively spoken of in the cars of the plaintiffs as the defendant represented.

It further appeared from the affidavits that the number of stockholders in the road, residing in the county, was five hundred and forty-eight, all of whom, however, excepting twenty-three, are residents of the four towns through which the road passes.

Such are the facts upon which the motion is founded, and although it might perhaps be difficult to organize an impartial jury from the four towns through which the road passes, yet the court will not presume that it might not be done even there, were it necessary. But in the remaining nine towns we discover nothing in the evidence that leads us to the conclusion that the subject-matter of the suit has been particularly discussed, or that opinions have been formed, or that any extraordinary difficulty will exist in securing an unprejudiced jury. And we will not suffer ourselves to doubt that the defendant can have a fair and impartial trial in Strafford. We place too much confidence in the intelligence and integrity of the jurymen of Strafford to suppose that a fair and impartial trial cannot be had in that county.

But there is another consideration connected with this question which should not be overlooked. There is but one county in our State through some parts of which one or more railroads does not pass, and probably a year will not elapse before that one will be penetrated. Actions similar to the present are believed to be pending in several of the counties, and among the rest in the county of Merrimack, to which it is moved to transfer this case for trial. It is not improbable, therefore, that considerable discussion may have-taken place in some localities in Merrimack and in other-counties, in regard to the general question. Merrimack is traversed more of less by six railways; and without having any positive knowledge of the fact, we should be inclined to'think that the question of the liability of subscribers to pay assessments upon the shares of stock for which they have subscribed, had been more generally discussed in that county than in Strafford. Still, we do not apprehend any particular difficulty in procuring an impartial jury in Merrimack to try such an issue, whenever a jury for that purpose may be required. But we need not pursue the inquiry any further. Upon the facts laid before us, the venue cannot be changed.

Motion denied.