# McKenna v. Fisk

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United States Supreme Court
42 U.S. 241
McKenna v. Fisk
This case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia and county of Washington.
Is the trial of the cause in the court below, the whole of the evidence offered by the plaintiff was shut out by a decision of the court, and the question was solely upon the correctness of this opinion.
The writ was as follows:
The United States of America, to the Marshal of the District of Columbia, greeting:
We command you, that you take Charles B. Fisk, late of Washington county, if he shall be found within the county of Washington, in your said district, and him safely keep, so that you have his body before the Circuit Court of the District of Columbia, to be held for the county aforesaid, at the city of Washington, on the fourth Monday of November next, to answer unto Bernard McKenna, in a plea, wherefore, with force and arms, &c., at the county of Allegany, in the state of Maryland, to wit, at the county of Washington, he broke into the storehouse of the said Bernard, and seized, took, detained, and destroyed the goods and chattels, and articles of household of the said Bernard, then and there found, and being of a large value, and other wrongs to the said Bernard then and there did, against the peace, dignity, and government of the United States, &c. Hereof fail not at your peril, and have you then and there this writ.
Witness, Wm. Cranch, Esq., Chief Judge of our said court at the city of Washington, the 1st day of May, Anno Domini, one thousand eight hundred and forty.
Issued the 27th day of May, 1840.
WM. BRENT, Clk.
The declaration was as follows:
Nar.
Washington County, District of Columbia, to wit:
Charles B. Fisk, late of the county of Washington aforesaid, yeoman, was attached to answer unto Bernard McKenna, in a plea wherefore, with force and arms, &c., at the county of Washington aforesaid, he broke into the storehouse of the said Bernard, and seized, took, detained, and destroyed the goods, chattels, and articles of household of the said Bernard, then and there found, and being of a large value, and other wrongs to the said Bernard then and there did, against the peace, dignity, and government of the United States, and to the great damage of the said Bernard.
And thereupon, the said Bernard, by Brent and Brent, his attorneys, complains, that the said Charles, heretofore, to wit, on the ___ day of September, in the year of our Lord eighteen hundred and thirty-nine, at the county of Washington, in the District of Columbia, with force and arms, &c., seized, took, detained, and destroyed the goods and chattels, to wit, one thousand gallons of spirituous liquors of different kinds; a large quantity of coffee and of tea; various clothing ready made for sale; two hundred bushels of Indian corn; all the promissory notes and accounts of sundry persons due to the said Bernard, to the amount of at least $400; all the furniture, bedding, and other articles in said storehouse; and also the shantee, or storehouse, in which said goods and chattels then and there were found; the said shantee or storehouse being a temporary building erected by said Bernard, and to be removed by him, and not being part of, or attached to, the freehold or real; all of said goods and chattels, bills, bonds, and accounts belonging to the said Bernard, then and there found, and being of a large value, to wit, of the value of $2000, and carried away and destroyed the same, and converted the same to his own use, and other wrongs to the said Bernard then and there did, against the peace, government, and dignity of the United States, &c. And also, for that the said Charles, to wit, on or about the ___ day of September, 1839, with force and arms, &c., at the county of Washington, in the District of Columbia, broke and entered a certain other shantee or temporary storehouse of the said Bernard, situate and being in said county ofWashington, and then and there made a great noise and disturbance therein, for a long space of time, and then and there forced and broke open, broke to pieces, damaged, and destroyed divers, to wit, bottles, barrels, hogsheads, jugs, and demijohns, containing one thousand gallons of spirituous liquor of different kinds, of, and belonging to, the said Bernard, and broke to pieces, destroyed, damaged, and spoiled divers, to wit, one thousand pounds of coffee; two hundred pounds of tea; one hundred suits of ready-made clothing; two hundred bushels of Indian corn; sundry promissory notes, bonds, bills, and accounts due to said Bernard from sundry persons; and also, sundry planks, timbers, shingles, and other materials in the construction of a certain shantee, also belonging to the said Bernard, then and there found, and of great value, to wit, of the value of $2000, and other wrongs to the said Bernard then and there did, against the peace, government, and dignity of the United States, &c.
And also, during the time aforesaid, to wit, on the day and year aforesaid, at the county aforesaid, seized and took divers other goods and chattels, to wit, one thousand gallons of spirituous liquors of different kinds; a large quantity of coffee and tea; two hundred bushels of Indian corn; $400 in amount of promissory notes, bonds, bills, and accounts due to said Bernard by different persons; sundry ready-made clothing; and also a certain shantee, all of the goods and chattels, promissory notes, bonds, bills, and accounts of the said Bernard, then and there found, and being of great value, to wit, of the value of $2000, and damaged, spoiled, and destroyed the same, and other wrongs to the said Bernard then and there did, against the peace, government and dignity of the United States. By means of which said several premises, he the said Bernard saith, he is worse, and hath damage of $4000, and therefore he brings suit, &c.
BRENT AND BRENT, for plaintiff.
John Doe and Richard Roe, Pledges, &c.
And the bill of exceptions was as follows: Plaintiff's Bill of Exceptions.
Bernard McKenna
v.
Charles B. Fisk.
At the trial of this cause, the plaintiff, to support the issue on his part joined, offered to give evidence by a competent witness, tending to prove that in the summer of the year 1839, the defendant, with a large force of armed men, came to the shantee, or storehouse, of the plaintiff, in Allegany county, in the state of Maryland, a place not within the jurisdiction of this court, and entered into the same, and then and there seized, took, and carried away the goods and chattels stated in the declaration, and at the same time offered to prove that the said shantee or storehouse was erected by the plaintiff for the purpose of carrying on his trade in merchandise on the line of the Chesapeake and Ohio canal, in said county, at, or near a place called Fifteen Mile Creek; and that, by the usage and practice on the said line of said canal, said shantees were considered temporary buildings, and could be removed or sold at the will and pleasure of the person erecting them; and that the said shantee of the plaintiff was a frame house and had posts in the ground.
And farther offered to give evidence, at the same time, to show the value of said goods and chattels and shantee, at the time of such taking and carrying away and destruction thereof by the defendant and others, to be more than $1000; but the court would not allow the plaintiff to give such offered evidence, or any part thereof, to the jury, but refused to permit the same to be given; to which decision and refusal of the court, the plaintiff excepts, and this his bill of exceptions is signed, sealed, and enrolled, this 28th day of December, 1841.
W. CRANCH, [L. S.]
JAS. S. MORSELL. [L. S.]
Test: W. BRENT, Clerk.
Brent and Brent, for the plaintiff in error.
Bradley and Coxe, for the defendant.
Brent, for plaintiff. If there be a variance between the writ and declaration, advantage can only be taken of it by plea in abatement. 2 Wheat. 55. First and third counts relate to personal property; second count charges an entry, but also injury to the personalty. Precedents in 2 Chitty's Pleading, 864, and 1 Evans's Harris, 524; cited also Comberback, 324. There is no misjoinder, 1 Chitty on Pleading, 394, edition of 1819; cited also, 1 Durnf. and East, 479; 1 Cowp. 171; case in Cowper since overruled, but not as to the question of pleading. Distinction between transitory and local actions, 1 Cowp. 177, 179; 1 Strange, 646. In 4 Durnf. and East, 503, there was a count for asportation of goods, but plaintiff nonsuited, because there was no proof. 1 Brock. Rep. 208; 1 Carth. 131; 2 Williams's Saund. Rep. 72, note; 2 Peters, 145, where a building erected for purposes of trade is said not to be real estate; 1 Saunders's Plead. 415; 2 Saund. Rep. 74(a); Rep. Temp. Hard. 121.
Bradley, for defendant, cited 3 B. C. 393; 1 Chitty's Pl. 438; 2 Wilson, 394. After party has appeared, the writ is dead. 1 Bos. and Pul. 647. Suppose declaration good; can it be sustained by proof of an injury committed in Maryland? 1 Taunt. 379. This is essentially an action of trespass quare clausum fregit. 2 Saund. Pl. and Ev. 858, marginal page; 1 Chitty's Pl. 271.
Coxe, on same side, insisted that this was essentially an action of trespass quare clausum fregit, and that the injuries laid were merely aggravation. Case in 2 Peters only decided the interest between landlord and tenant, and not that the latter was unable to bring trespass for an injury to his possession.
Brent, sen., in conclusion. Only the second count refers to the storehouse; the first and third are for injuries to the personalty. The second is copied exactly from Evans's Harris.
Mr. Justice WAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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