Dickson & Varian, for the respondent. The action was rightfully dismissed, because it was one over which the justice had not, and could not acquire, jurisdiction. No person shall be held to answer a summons issued against him from a justice's court in a civil action, in any precinct other than the one in which he shall reside, unless the case falls within some one of the subdivisions of section 1734 of the compiled laws. It is contended that the case before the court does fall within the sixth subdivision of this section, because the duebills in the one case and the account in the other are dated at Bingham. So far as the due bills are concerned, the place at which they are dated may be taken as the place where the contracts were made. But the fact that they are dated at a particular place affords no presumption that the contracts were to be peformed at that place. (If it did it would not aid appellant at all, because the jurisdiction of a justice must affirmatively appear-no presumptions are indulged in favor of such jurisdiction.) The statute, however, makes the jurisdiction of the justice depend upon the fact that the contract is to be performed within his precinct, and not at all upon the fact that it was made within such precinct. A contract to pay money, generally, is not a contract to pay at the place where the promise is made, but it is to pay at whatever place the creditor may be found within the sovereignty: 2 Chit. Cont., 11th Am. ed., 1069; Holden v. Johnson, 8 Exch. 689; Fissard v. Maguier, 18 C. B., N. S., 286; Poole v. Tumbridge, 2 Mee. & W. 223; Bixby v. Whitney, 5 Greenl. 192; Hale v. Patton, 19 Am. Rep. 168. EMERSON, J.: This action was originally commenced in the justice's court for Bingham precinct in Salt Lake county, to recover on certain due-bills dated at, and for work performed in, that precinct, but no place of payment was named. The record shows that the defendant is a resident of Salt Lake City, and that there is, and was at the time this suit was commenced, a justice's court and a justice competent to act in the precinct where the defendant resides. The defendant made a special appearance in the justice's court, and moved to dismiss the case for the reason, among others, that the justice had no jurisdiction, the defendant's residence being out of the justice's precinct. The justice denied the motion, and gave judgment against the defendant on default of an appearance and answer. The defendant appealed to the district court, where upon his motion the case was dismissed for want of jurisdiction in the justice. The plaintiff appeals to this court from the order of dismissal. The practice act, Comp. L. 1734, provides that no person shall be held to answer a summons issued against him from a justice's court, in a civil action, in any precinct other than the one in which he shall reside, unless the case falls within some one of the subdivisions of that section forming exceptions thereto. It is contended by the appellant that this case falls within. the sixth subdivision, which is as follows: "When a person has contracted to perform any obligation at a particular place, and resides in another precinct, he may be sued in the precinct in which such obligation is to be performed or in which he resides." The due-bills sued upon do not bring the case within this exception. They are not contracts to perform any obligation in the precinct where the suit was brought, or in any particular place. Like promissory notes, not made payable at any particular place, they are payable at the domicile of creditor. The defendant being at the time a resident of another precinct in which there was a justice's court and a justice competent to act, and the due-bills not being contracts to perform any obligation in the precinct where the suit was brought, the action was one over which the justice had not, and could not acquire, jurisdiction. The judgment of the court below in dismissing the case is affirmed. HUNTER, C. J., and Twiss, J., concurred. SANDERS v. WOOLF. JUDGMENT AFFIRMED ON THE AUTHORITY OF KLOPENSTEIN v. WOOLF, decided at this term, ante, p. 426. APPEAL from the third district court. The opinion states the facts. Woods & Hoffman, for the appellant. Dickson & Varian, for the respondent. The facts in this case are identical with those in the case of Klopenstein v. Woolf, decided at this term. For the reasons there given, the judgment of the lower court is affirmed. HUNTER, C. J., and Twiss, J., concurred. APPENDIX. # KENYON v. KENYON. [JANUARY 29, 1861.] THE JURISDICTION TO HEAR, TRY, AND DETERMINE CAUSES IN DIVORCE is not the exercise of chancery or common-law jurisdiction. THE PROBATE COURTS AND NOT THE DISTRICT COURTS have original jurisdiction in divorce cases. APPEAL from the second district, Carson county. The opinion states the facts. Stephen De Wolf, for the appellant. Broadhead & James, for the respondent. KINNEY, C. J.: Susan Kenyon filed her petition in the district court for divorce, charging adultery, and praying that the bonds of matrimony between her and her said husband be totally dissolved, also for the care and custody of the children, and for a separate estate out of the property of the defendant. Kenyon answered, denying the facts charged, and alleged that the petitioner was herself guilty of the crime imputed to him. A bill of exceptions was taken on the trial, by which it seems, among other objections made to the jurisdiction of the court and overruled, was one that the district court had no jurisdiction of the action of divorce. The court decreed a divorce from bed and board, the care and guardianship of the children, and two thousand five hundred dollars as alimony to the plaintiff. The defendant 3 431 3 127 3 128 24* 829 1* 465 1* 466 |