Supreme Court.

George Johnston ads. Louis Grignon

Appeal from the Court of the county of Michili-mackinac

Motion by Defts. Atty. that the judgment of the Court below be reversed.

,St 1“ The Court below had not jurisdiction of the case.

It is an action of trespass quare clausum fregit, alledged and charged in and by the declaration to have been committed at Green Bay in the County of Brown; and hence the said court could in no manner take cognisance of, try and render judgment in, said action, being Statute limited in their jurisdiction to the County of Michilimackinac.

“Wherever the cause of action must necessarily have arisen in any particular county, or wherever the parties to the suit become such by mere privity of estate, as it is called, such action is local, and must be brought in that county where the cause of action arose.” “With respect to the first part of this definition, it may be easily understood; and it is obvious, that it must comprehend all actions where the possession of the land is to be recovered, as ejectment and the like; and also where any actual trespass or waste has been committed on any premises; &c”

“The action of trespass quare clausam fregit, is a local action, and consequently the venue must be laid in the county where the land lies.”

Trespass committed in Canada, action brought in England — held not maintainable.

This error of instituting the action in a wrong County, may be taken advantage of after the general issue plead, in any manner to arrest the judgment. It is a good ground for non-suit.

“If the action be really local, and the venue be not of the proper county, should it appear on the face of the declaration, it would be demurrable to; or if it is proved on the trial, the plaintiff will be nonsuited.”

*6232nd It is not stated positively in the declaration that the plff. owned, or was in possession of the premises at the time of the alledged trespass.

He could not have been the owner, because the Lands at Green Bay have never been confirmed to the persons in possession, and the title still rests in the Government of the United States.

“Being founded on an injury to the possession, it is essential that the defendant should be in possession of the close at the time when the injury is committed.”

This court cannot presume the possession proved in the court below, because it was not stated in the declaration — unless averred it could not be proved.

3d The Seal of the court below was not affixed to the writ in this case, and hence the arrest was illegal. J. D. Doty

Octr 17. 1820. Atty. for Deft.