Niles v. Howe

The opinion of the court was delivered by Powers, J. This action was brought to the County Court, is between residents of Vermont, and is for a trespass on lands in Massachusetts. Section 899, R. L., declares that actions in the County Court of ejectment and trespass on the freehold shall be brought in the county in which the lands lie. It is argued that this section refers to lands lying in this State; and further, that the distinction existing at common law between local and transitory actions rested upon reasons no longer existing, and should therefore no longer be observed. Our statute leaves the venue in actions of trespass guare clausum as it was at common law. At common law venue was transitory when the cause of action might have happened in any county; it was local when it could happen in one county, only. An assault could happen in any place. The entry upon land could only happen where the land lay. The place of trial in the latter case, therefore, was fixed by the very nature of the injury complained of. In Doulson v. Matthews, 4 T. R. 503, which was trespass [391] for entering the plaintiff’s house in Canada, Lord Kenyon nonsuited the plaintiff on this count, because the action was local; and Büxler, J., 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 the action of trespass quare clausum fregit is local.” In Rafael v. Verelst, 2 Bl. W. 1055, De Grey, Ch. J., said that as to rights of real property the jurisdiction was local. In Shelling v. Farmer, 1 Str. 646, the plaintiff, inter alia, declaring for a seizui'e of a house in the East Indies, Eyre, Ch. J., refused to let in evidence respecting the seizure of the house, inasmuch as such cause of action was local. In McKenna v. Fisk, 1 How. 241, the action was brought in the District of Columbia. One count went for breaking and entering a storehouse in Maryland. The Supreme Court said the evidence offered in support of the count for breaking and entering was not competent; “because the venue is local, and cannot he changed to any other county than where the trespass to the realty was done, and never can be carried out of the sovereignty in which the land is.” See also Hurd v. Miller, 1 Hilton, 540; 2 Wat. Tres. s. 985, n. If it was too late in Lord Kenyon’s time to inquire into the wisdom of the distinction between local and transitory venue, the lapse of near a century has made the inquiry no more opportune; especially, since the courts have been meantime rooting the doctrine deeper and deeper in the law by a uniform course of decision. The venue in case of crimes is local. It would hardly be claimed that our courts had jurisdiction over a crime committed in another State. And yet the same reasoning that supports the doctrine of local venue applies equally to crimes and real actions. Rex v. Johnson, 6 East, 583. We hold, therefore, that at common law and under our statute the court below had no jurisdiction of the cause of action declared upon. [392] Under our practice an objection to the jurisdiction of the court over the subject matter may be raised at any stage of the proceedings, by motion to dismiss. In the case cited by the plaintiff in 21 Vt., the objection made did not affect the jurisdiction of the court. Judgment affirmed.