# Sears v. Eastburn

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United States Supreme Court
51 U.S. 187
Sears v. Eastburn
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Alabama.
In August, 1845, Sherburne Sears brought an action of trespass quare clausum fregit, in the Circuit Court of the United States for the Southern District of Alabama. The short note, expressive of the cause of action, filed at the time of issuing the writ, declared it to be 'as well to try titles as to recover damages,' &c., and the declaration described a particular lot in the city of Mobile, where the trespass was alleged to have been committed.
In April, 1846, the counsel for the defendant moved the court to dismiss the suit, because the statute of Alabama entitled 'An Act to abolish fictitious proceedings in ejectment, and for other purposes therein mentioned,' approved December 17, 1821, under which the suit was brought, did not extend to the Circuit Court; and the court, being of that opinion, dismissed the suit.
The plaintiff sued out a writ of error, and brought the case up to this court.
It was argued by Mr. Sewall, for the plaintiff in error.
The plaintiff contends that the action of trespass in this case was maintainable in the Circuit Court of the United States in Alabama, and was therefore improperly dismissed.
1st. By an act of Alabama, approved December 17, 1821, the action of trespass was substituted for that of ejectment (Clay's Dig., p. 320, §§ 43, 44, 45), and has ever since remained a remedy for trying the title to, and recovering possession of, lands. It was in force at the time of the passage of the act of Congress of the 19th May, 1828 (4 Stat. at L., 278), and was therefore adopted by that act as a part of the 'forms and modes of proceeding in suits' in the Circuit Court of the United States for the Southern District of Alabama. Beers v. Haughton, 9 Pet., 357; Strachen v. Clyburn, 3 McLean, 174. It is a remedy in constant use in Alabama, and has been before this court in City of Mobile v. Eslava, 16 Pet., 235; Same v. Hallett, Id., 261. The declaration may be in the usual form of trespass quare clausum fregit. Carwile v. House, 6 Ala., 710.
In Hagan v. Lucas, 10 Pet., 400, the Circuit Court of the United States at Mobile entertained a suit for the trial of the right of property under an act of Alabama of the 24th December, 1812, and its judgment was affirmed by this court.
2d. By the eleventh section of the Judiciary Act of 24th September, 1789 (1 Stat. at L., 78), 'The Circuit Courts have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law and in equity,' &c. Common law in this act must be taken in contradistinction to equity; and may well embrace the action of 'trespass,' applied by a state statute as a remedy for trying the title to land.
3d. It is a remedy in respect to real estate, and the general rule is, that such remedies are to be pursued according to the law of the place where the estate is situated. Robinson v. Campbell, 3 Wheat., 212, 219.
Mr. Chief Justice TANEY 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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