The enquirer. [volume] (Richmond, Va.) 1804-1815, 1811-12-19

.sa-but this cannot consent to do mel
| aer can fly in The face OF my own decisions
latil better taught
ba, there is 40 failure Of justice: there is
court o. competent power to try,the cause, j
=. actual 1rcspass has been committed ant
| mere ough, the suit to have been brought Il.
5ainst the real Trespasscr. own there may
DC cases where 4 man might so manage his
matters as to run through anothcr's ground
and lay waste his enclosures and even pull
down his fences, and then Ace from just,ce.
IKE another criminal, and thus get out OF tie
reach OF the law wiich is not uncommon--
There arc cases that no law can well provide
against, and these may be considered as par
tai evils, and exceptions to good general
Rule.
am too unwcll to follow ind pay respect
to all the arguments which have been adj
vanced in support Of the jurisdiction OF this
court over the case before us; and therefore
must conclude by giving my decided opinion
IN favor Of the Plea to the jurisdictions The
cause must therefore so out of Court.
Demurrer on a flcu }
to This Jurisdiction. 'AAf' l. J.
The sole question now to be decided is
tins can this court take ccgnizancc of q
trcsPass committed on lands wing within tho
United States, and without the district of
Virginia, III a case where the srespasser is a
resident OF, and is found within the district
Iconcur with my brother Judge in the o.
pinion, that il cannot.
regret that the Inconvenience to which
delay might expose at least one OF the par
ties, together with the situation of the court.
prevent ME from bestowing OH this question
that deliberate consideration which the very
able discussion it has received from the bar
would seem torequire; bat have purpose
| ~ avoided any investigation of the subject
previous to the argument, and must now be
content with brief statement OF the opini-
| on nave formed, and a sketch Of the course
Of reasoning which has led to it.
ne doctrine OF actions local and transit
tory has been traced up to it's origin in the
common law and, as has been truly stated
on Doth SIDES, 1t appears that originally all
| actions were local. That is, that according
10 the principles of the common law, every
lact must be tried by Jury of the vicinagc.
The plain consequence of this principle Was.
| tnat those courts only could take jurisdiction
OF case, who were capable of directing
| such jury as must try the material facts
on which their Judgment would dercnd. The
jurisdiction of the courts therefore necessa-
riiy became local with respect to every spe
cies of action.
But the Superior Courts of England hav-
ing power to direct a jury toevery part CT
the Kingdom, their jurisdiction could be re.
sing on transactions which occurred within
the realm Being able to direct Jury either
TO curry or MiddiescX, the necessity of a.
verring IN the declaration that the cause of
| action arose in either county. could not he
produced in order to give the court iurisdic-
tion, but to furnish venue. For the pur-f
pose OF Jurisdiction, it would unquestionabiy
be sufficient to aver that the transaction took
place within the realm.
however h,.ip
iation, but principle of unwritten law.
which is really human reason applied BIZ
courts, not capriciousiy> but in regular
tram OF decisions, to human affairs accord
ing TO the circumstances of the nation, the
necessity OF the times, and the general state
OF things, was thought susceptible of modi-
hcatlon, and Judges have modifieI it. They
have not changed the old principle as to
form. 1t Is still necessary to give venue
evidence OF the place where it was made,
the party is at liberty to aver that SUCH place
lies IN any county in England
L MS is known to be a fiction. Like an g
Jectment, 1t is the creature of the court,
and is moulded to the purposes of, Justice
according to the view which it's inventors
nave taken of its Capacity to effect those
purposes. 1t is-not however, of undeiinable
extent. 1t has not absolutely Frustrated all
Ni''i'S' ioiiS VI PitCe, Dut mas Certain limits
prescribed to it founded in reasoning salts
factory to those who have gradually fixed
these limits. 1t may well be doubted vine
ther, at this day, they arc to be changed by
judge not perfectly satisfied with their
extent.
Inns tiction is so far projected by its in
ventors that the averment VS. no. traverse
bic tor the purpose of dcfeating an action it
was invented 90 sustain bat it is traverse
bic whenever such traverse may be cssenti-
al to the merits OF the cause. IL is always
traversabie Tor the purpose Of contesting =
jurisdiction not intended TO be protected b.,
the fiction.
In the case at bar it is traversed FOR that
purpose, and the question is whether this
De Il case in which such traverse is sustain
able or, in OTHER words, whether courts
nave so tar extended their fiction as, by its
and, to take cognizance of trcspasses on
lands not lying within those limits which
bound their process.
They have, without legislative aid, APP
pied this fiction TO all personal torts; and TO
All contracts wherever executed. To this
general rule contracts respecting lands form,
no exception. 1t is admitted that on a con-
tract respecting lands an action is sustaina
be whereve" the defendant may be found
Yet III such case, every difficulty NAV oc-
cur which presents itself in an action Of
UcSpaSs. An Investigation of title NAV be-
come necessary. A question of boundary
may arse, ard a survey may be essential To-