Haskell v. Inhabitants of Woolwich , 58 Me. 535 ( 1870 )

Appleton, C. J.

This is an action on the case to recover compensation for an injury occasioned by a defect in an highway which the defendant town was bound to keep in repair. The suit is brought in the county of Lincoln. The town of Woolwich is within the county of Sagadahoc.

-Actions of this description were transitory at common law. Titus v. Frankfort, 15 Maine, 89. They were made local by an act passed in 1849, c. 108. By R. S., 1857, c. 81, § 6, “all actions against towns for damages by reason of defects in highways, shall be brought and tried in the county in which the town is situated.” The same provision is found in the revision of 1871, c. 81, § 13.

This action being made local by statute, must be brought in the county of which the town sued constitutes a portion. Being a local action, it was not necessary to plead in abatement. “ When an action, local in its nature, is commenced in a wrong county, the defendant,” observes Preble, J., in Hathorne v. Haines, 1 Greenl. 245, “ is not obliged to plead the fact in abatement. If the objection appear on the record, he may avail himself of it on demurrer ; or, if it do not appear in the record, as in the case at bar, ‘ he may avail himself of it on trial under the general issue.” The defendant may demur to the declaration when the fact appears of record. Thrale v. Cornwall, 1 Wils. 165 ; White v. Sanborn, 6 N. H. 220. So the plaintiff, after the general issue has been pleaded, may be nonsuited. 15 Peterson, 326 Venue. So judgment may be arrested. Robinson v. Mead, 7 Mass. 353. In accordance with these views are all the decisions of this court. Blake v. Freeman, 13 Maine, 130; Webb v. Goddard, 46 Maine, 505. Had this been a transitory action, the ruling of the presiding justice would have been correct. But as the law is, tbis action cannot be “ brought and tried ” in the county in which it was commenced without directly and clearly violating the statute, which prohibits this being done.

Tlio decision in Raymond v. Lowell, 6 Cush. 524, rests upon the statutes of Massachusetts, and is not an authority adverse to the conclusions to which we have arrived. Exceptions sustained.

Cutting, Kent, Walton, Dickerson, and Dan forth, JJ,, concurred.