After pleading the general issue, it is too late to take
advantage of a defect in the writ or a variance between the writ
and declaration.
Actions of trespass, except those for injury to real property,
are transitory in their character.
Where the writ mentions a trespass with force and arms upon the
storehouse of the plaintiff and a seizure and destruction of goods,
it covers a transitory as well as a local action.
In transitory actions, a venue is laid to show where the trial
is to take place. It is a legal fiction, devised for the
furtherance of justice, and cannot be traversed.
In such actions, such a venue is good without stating where the
trespass was in fact committed, with a
scilicet of the
county in which the action is brought.
In the absence of statutory provisions, the courts in the
District of Columbia must apply the principles of the common law to
such actions, the pleadings, and the proofs.
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,
Page 42 U. S. 242
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, 1 May, Anno Domini, one thousand eight hundred
and forty."
"Issued 27 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
Page 42 U. S. 243
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 $2,000, 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 of Washington, 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 $2,000, 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
Page 42 U. S. 244
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 $2,000,
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
$4,000, 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 & 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 $1,000; 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
Page 42 U. S. 245
given; to which decision and refusal of the court, the plaintiff
excepts, and this his bill of exceptions is signed, sealed, and
enrolled, this 28 December, 1841."
"W. CRANCH [L.S.]"
"JAS. S. MORSELL [L.S.]"
"Test: W. BRENT,
Clerk "
Page 42 U. S. 246
MR. JUSTICE WAYNE delivered the opinion of the Court.
The declaration in this case contains three counts. It is
alleged in the first and third, that the defendant, with force and
arms, in the County of Washington, seized, took, detained, and
destroyed the goods and chattels belonging to the plaintiff, and
also the shantee or storehouse in which the goods were found, of
the value of $2,000. The only difference in the counts is in the
specification of the goods destroyed. In the second count, the
defendant is charged with having, with force and arms, in the
County of Washington, broke and entered a certain other shantee or
temporary storehouse of the plaintiff, situate and being in the
County of Washington.
The defendant pleaded not guilty, and issue was joined on that
plea.
The plaintiff, on the trial, in support of his case, offered
evidence to prove, that the defendant, with a large force of armed
men came to the storehouse or shantee of the plaintiff, in Allegany
County, Maryland, entered into the same, and took and carried away
the goods and chattels stated in the declaration &c., and other
evidence was offered to show the value of the goods. The court
refused to permit the evidence to be given to the jury. Upon an
exception to this ruling, the case is now before this Court.
It was first urged in argument that as the original writ in the
case declared that the defendant, with force and arms &c.,
broke into the storehouse of the plaintiff &c., it was such a
declaration of the nature of the complaint, which the defendant was
required to answer, that it must be considered as the gist of each
count, and that there was such a variance between the counts and
the writ that it would abate the writ. Admit that this fault
exists, and that the nature of the plaintiff's demand must be
mentioned in the writ, that the defendant may know before he
appears in court the kind of complaint he is required to answer,
and that the declaration afterwards filed, or the writ, or both,
shall be deficient in some legal requisite, or shall contain
irregularity, informality, or mistake, which would abate the writ,
the defendant is not here in a situation to avail himself of the
fault. He has pleaded not guilty. This plea refers to the counts,
and not to the writ. It puts the plaintiff to prove the material
allegations in his declaration, and the defendant assumes by it to
contest them.
Page 42 U. S. 247
To allow, then, a defendant, after the general issue has been
pleaded, to avail himself of any defect or mistake in the writ, or
variance or repugnancy between the count and the writ, would be not
to try the cause at issue, but would have the effect to take it
from the jury and to place it before the court, upon a point of
pleading which has not been pleaded, and which is unconnected with
the merits of the cause. Such mistakes, either in the writ or in a
variance between the count and the writ, must be taken advantage of
by a plea in abatement. And if the mistake or fault is apparent on
the face of the declaration, such as a misstatement of the cause of
action, it will be a good cause of demurrer. 3 Black.Com. 301;
Com.Dig. Abatement, G, I, 8; Willes 410; 1 Show. 91; 1 Salk. 212;
Duvall and
Craig, 2 Wheat. 45,
15 U. S. 55. The
case, then, is not in a condition to enable the defendant to avail
himself of the objection. But is there any such variance in this
case. We think not. The writ mentions a trespass with force and
arms upon the storehouse of the plaintiff and the seizure and
destruction of goods. This puts the defendant in possession of the
complaint against him, or what he will be required to answer before
he appears in court. It is but the commencement of the suit, and is
sufficient if it advises the defendant of the cause of action,
without those particulars which must be set out in the declaration,
which, when filed, gives the defendant an opportunity to use any of
those defenses or pleas to which he may be entitled by the rules of
pleading.
It was also urged that the venue laid in each of the counts was
so imperfect that the evidence offered could not be received to
support either of them. That it could not be received under the
second count, for that was
quare clausum fregit in the
County of Washington, and the evidence proved a local trespass
within another jurisdiction or sovereignty, and that it could not
be received under the first and third counts because, though they
might be counts, for transitory causes of action, it was necessary
to lay a venue where the trespass was committed with a
scilicet, to let in the evidence at any other place of
trial. The evidence offered as to the local count was certainly not
competent, but that is because the venue is local, and cannot be
changed into any other county than where the trespass to the realty
was done, and never can be carried out of the sovereignty in which
the
Page 42 U. S. 248
land is. But it is an established rule that in transitory
actions a venue is only necessary to be laid to give a place for
trial. Such a venue is indispensable, for without it would not
appear in what county the trial was to take place, nor could a jury
be summoned to try the issue. Com.Dig. Pleader, C, 20; 1 Cowp. 176,
177; 5 Term 620; 2 Lev. 227; Bacon's Ab. Venue, C; 3 Term 387. The
venue for trial is a legal fiction, devised for the furtherance of
justice, and cannot be traversed. So that if A becomes indebted to
B or commits a tort upon his person or upon his personal property
in Paris, an action in either case may be maintained against A in
England, if he is there found, upon a declaration alleging a cause
of action to have occurred in an English county, in which the
action is laid, without taking notice of the foreign place. 1 Cowp.
177-179. Lord Mansfield said:
"But as to transitory actions, there is not a color of doubt but
that any action which is transitory may be laid in any county in
England, though the matter arises beyond the seas.
Mostyn v.
Fabrigas, 1 Cowp. 161."
In
Doulson v. Matthews, 4 D. & East 503 (a case in
all its particulars like this), which was an action for entering
the plaintiff's house in Canada and expelling him, and in which
there was a count for taking away his goods, Lord Kenyon nonsuited
the plaintiff because the first count was local and because he had
not supported his second count by proof. Buller, Justice, also
said:
"It is now too late for us to inquire whether it was wise and
politic to make a distinction between transitory and local actions;
it is sufficient for the courts that the law has settled the
distinction and that an action
quare clausum fregit is
local. We may try actions here, which are in their nature
transitory, arising out of a transaction abroad, but not such as
are in their nature local."
In
Rafael v. Verelst, 2 W. Black. 1055, which was a
trespass committed in the dominions of a foreign prince, De Grey,
Chief Justice, said:
"Crimes are in their nature local, and the jurisdiction of
crimes is local. And so as to the rights of real property, the
subject being fixed and immovable. But personal injuries are of a
transitory nature, and
sequuntur forum eri. And though in
all declarations of trespass it is laid
contra pacem
regis, yet that is only matter of form and not
traversable."
The same doctrine in respect to local and transitory actions has
been repeatedly affirmed in the courts
Page 42 U. S. 249
of the states of this Union. 1 Stra. 646; 2 W. Black. 1070; 1
Cowp. 176; 4 Term 503-507; Cowp. 587; 6 East 598, 599; Com.Dig.
Action 177; 1 Cowp. 161, 177, 178, 184, 344; 2 H. Black. 145, 161;
Co.Litt. a, n. 1; 3 Term 616; 7 Term 243; 1 Saund. n. 2;
Glen
v. Hodges, 9 Johns. 67;
Gardner v. Thomas, 14 Johns.
134. It then appears from our books that the courts in England have
been open in cases of trespass other than trespass upon real
property, to foreigners as well as to subjects and to foreigners
against foreigners when found in England, for trespasses committed
within the realm and out of the realm or within or without the
King's foreign dominions. And it also appears from the authorities
which have been cited that in a transitory action of trespass, it
is only necessary to lay a venue for a place of trial, and that
such venue is good without stating where the trespass was in fact
committed, with a
scilicet of the county in which the
action is brought.
The courts in the District of Columbia have a like jurisdiction
in trespass upon personal property with the courts in England and
in the states of this Union, and in the absence of statutory
provisions, in the trial of them must apply the same common law
principles which regulate the mode of bringing such actions, the
pleadings, and the proof. It is our opinion that the exception
taken by the plaintiff to the ruling of the court, in respect to
the evidence excluded, must be sustained, and we direct the cause
to be
Remanded for further proceedings.
ORDER.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof it is now here ordered
and adjudged by this Court that the judgment of the said circuit
court in this cause be and the same is hereby reversed with costs,
and that this cause be and the same is hereby remanded to the said
circuit court with directions to award a
venire facias de
novo.
