#### Theodore Barrell *versus*Park Benjamin.

It seems that one foreigner may sue another who is transiently within the jurisdiction of the courts of this state, upon a contract made between them in a foreign country.

A citizen of any other of the *United States*is not considered as a foreigner in this state, in any courts of law.

This was an action of *assumpsit;*and while on trial before the jury, the question arose whether this Court had jurisdiction of the suit. In order to have this question settled by the whole Court, the parties agreed on the following statement of facts: —

*Barrell,*the plaintiff,

is a native citizen of the *United States,*having been born within this commonwealth: but at the time when this action was commenced, and long before, he lived in the town of *Norwich,*in the state of *Connecticut.*

The defendant, *Benjamin,*is a native citizen of the state of *Coi necticut;*but more than twenty years past has had, and still has, his domicile in *Demerara;*although, when this action was commenced, he was in *Boston,*on his way to *Demerara;*and the plaintiff's writ was served by arresting his body.

The plaintiff and defendant were partners in a house in *Demerara,*jointly carrying on commerce there as partners for many years before the year 1807, when their copartnership was dissolved. This action was commenced and prosecuted to recover the balance supposed to be due, from the defendant to the plaintiff, on settlement of their accounts. When the *British*took possession of the colony of *Demerara,*in the year 1803, the said *Benjamin*took an oath of allegiance to that government.

If the Court should be of opinion that they ought to hold jurisdiction of the action, it was agreed that the defendant should be holden to render his account, and that auditors should be appointed to audit the same. But if the Court should be of a different opinion, the plaintiff was to become nonsuit, and the defendant recover his costs.

* *Hubbard,*for the defendant,

contended that the plaintiff was to be considered merely as a foreigner, having no other rights than any alien friend, any thing in the constitution or laws of the *United States*notwithstanding. The defendant is also a foreigner; and, in the event of a war between the *United States*and *Great Britain,*he would be an alien enemy. Both parties being foreigners, their being accidentally in this commonwealth cannot give jurisdiction to its courts, who were not appointed to determine controversies in which its citizens have no interest.

*320The Court cannot take cognizance of the contract attempted to be enforced in this action, which was not made here, nor to be executed or performed here, nor with reference to our laws. If the Court should entertain jurisdiction of the cause, it must be tried and determined by the law of the country where it was made, and where it was to be executed. (1)

The objection goes in bar of the action, and not in abatement, for no court in the commonwealth can take cognizance of it. (2)

It is not contended that, if the defendant had come into this state with a view to take up his residence here, he would not be answerable in this action; but being transiently here, and merely passing through the state on his way home, he cannot be held to answer to another foreigner, also accidentally here. (3) By the law of this commonwealth, *Stat.*1795, c. 61, § 2, the action upon a judgment of a court of record in any other of the *United States*is to be sustained here only when the defendant *dwells or resides*here, or has valuable property here. Neither of these facts exists in the present case.

*Ward*for the plaintiff.

(1)

 2 *Burr.*1077, *Robinson*vs. *Bland.*

(2)

 4 *D.*& *E.*503, *Doulson*vs. *Matthews & Al.*—3 Mass. *Rep.*24, *Rea*vs. *Hayden*and the cases in the notes. — 5 *Mass. Rep.*362, *Lawrence*vs. *Smith*& *Al.*— 6 *Co.*47 *Dowdale's*case.— *Cowp.*176, *Mostyn*vs. Fobrigas.— 1 *Mass. Rep.*401.

(3)

 1 *Robinson’s Adm. R.*235. — 4 *Rob. Adm. R.*240. — 2 *Brown’s Civil and As miralty Law,*119 — *Bee’s R*221.

Parker, C. J.,

delivered the opinion of the Court. Upon the facts agreed in this case, the defendant’s counsel has argued against the jurisdiction of this Court, both from the nature of the contract, and the situation of the parties; and has cited some authorities in support of his argument. * Upon examining them, however, and such others as can be found bearing upon the question, it does not appear that any direct decision has been had upon this subject. Indeed, it would seem, from the entire want of "authorities in the *English*books, that the question has never been raised there; and the presumption is violent, that the jurisdiction of the common-law courts in such a case would not be doubted.

In the case of *Melan*vs. *Duke de Fitzjames,*(4) the point was not started. Both the parties were *French*subjects. The defendant had been arrested and held to special bail, on a contract made in *France,*and to be performed at his house there. All that was moved for was, that his bail bond might be discharged, and he permitted to enter a common appearance; because, by the laws of *France,*he was not liable to arrest upon such a contract. Both court and counsel take the ground that the action was maintainable *321in the *English*courts; and one of the judges was against discharging the bond, because, the contract being personal, and sued in *England,*the creditor was entitled to the remedies afforded by the *English*law.

In the case of *Robinson*vs. *Kerr,*printed in a note to the case of *Rea*vs. *Hayden,*3 *Mass. Rep.*25, both parties were alien friends, and the contract was made in the country where they both lived. The court would not sustain the action. But it does not appear that either the plaintiff or defendant was within this state when the action was brought. On the contrary, it is to be inferred from the report that both were absent, and that the action was brought because some property of the defendant was found here. It cannot be inferred, from this decision, that, if the defendant had been found within the jurisdiction of the court, and arrested, the suit would have been dismissed. It might well have been thought, that the mere circumstance of property, being found here did not give the court jurisdiction over the person of a foreigner, in a suit of another foreigner against him; or perhaps that the court might * entertain jurisdiction or not, at their discretion; as seems to have been the opinion of the Supreme Court of the *United States*in the case of *Mason & Al.*vs. *Ship Blaireau,*(5) cited in the argument by Mr. *Ward.*

With respect to the two cases which occurred in the Circuit Court of the *United States,*contained in the note before referred to, the report states it as probable that the court refused to sustain the actions, on account of its limited and special jurisdiction, as given to it by the constitution and laws of the *United States.*And there is no doubt that the decision was correct; for it will be found, upon examining the constitution of the *United States,*that a controversy between two foreigners, who are private subjects, is not enumerated as within the judicial power of the *United States.*

But the jurisdiction of this Court, as a court of common law, is unlimited; and all cases, cognizable by any of the courts of com mon law in *England.,*are cognizable here.

Personal contracts are said to have no *situs*or locality, but follow the person of the debtor, wherever he may go; and there seems to be no good reason why courts of any country may not lend their aid to enforce such contracts; especially since it is a well-known principle that, in construing such contracts, the law of the place where they are made will be administered. So that the objection made, in this case, of the possible difference between the laws of *Demerara*and this commonwealth, can have no influence on the question.

*322It is true that the debtor may be put to inconvenience by being obliged to answer in a foreign country. But the creditor may also be put to inconvenience if he should be denied the privilege of suing in a foreign court; for the debtor may withdraw his person and effects from the place of his business; and if he cannot be pur sued, may defraud his creditor of his due.

It seems, however, to be admitted in the argument, that, if the defendant resided here, there would be no objection * to the action ; the complaint being that he was arrested within this state, when here only for the purpose of embarking for *Demerctra.*But we see no way of upholding the distinction, and there is nothing to be found in the books to support it. A debtor coming here merely for the purpose of embarking may be detained several months before he procures a passage; he may have all his effects about him; and he may never return to the place where he transacted his business. If the creditor cannot take him here, he may lose his chance of securing his debt. On the score of inconvenience, there is nothing in favor of the defend ant’s argument.

But, for the decision of this particular case, we need not go into any general reasoning. The plaintiff is a citizen of the *United*States, having his domicile in *Connecticut.*By the second section of the fourth article of the constitution of the *United States,*it is provided that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Since the adoption of the constitution, the citizens of *Connecticut,*or any other state in the *Union,*cannot be considered as foreigners; and indeed are not so considered practically in any courts of law. Citizens of different states may change their domicile from one state to another, and enjoy all the privileges of citizenship wherever they may go.

It will be admitted that a citizen of *Massachusetts*has the privilege to sue any foreigner who may come within this state, whether he come to embark for a foreign country, or to reside here for the purposes of business. If so, a citizen of *Connecticut*has the same privilege secured to him by the constitution ; and arguments, which might be plausible if used against a foreigner, cannot avail against a plaintiff who has none of the disabilities of a foreigner attending him.

According to the agreement of the parties, there must be judg ment that the defendant account; and auditors must be appointed

(4)

 1 *B.*& *P.*138.

(5)

*2 Cranch,*264.