cording to the view which its inventors have taken of its capacity to effect those purposes. It is however, of undeniable extent. It has not absolutely prostrated all distinctions of place, but has certain limits prescribed to it, founded in reasoning satisfactory to those who have gradually fixed these limits. It may well be doubted, whether at this day, they are to be changed by a judge not perfectly satisfied with their extent.

This fiction is so far protected by its inventors, that the averment is not traversable for the purpose of defeating an action it was invented to sustain; but it is traversable whenever such traverse may be essential to the merits of the cause. It is always traversable for the purpose of contesting a jurisdiction not intended to be protected by the fiction.

In the case at bar, it is traversed for that purpose, and the question is, whether this be a case in which such traverse is sustainable; or, in other words, whether courts have so far extended their fiction as, by its aid, to take cognizance of trespasses on lands not lying within those limits which bound their process.

They have, without legislative aid, applied this fiction to all personal torts, and to all contracts wherever executed. To this general rule, contracts respecting lands, form no exception. It is admitted, that on a contract respecting lands, an action is sustainable wherever the defendant may be found: yet, in such a case, every difficulty may occur which presents itself in an action of trespass. An investigation of title may become necessary. A question of boundary may arise, and a survey may be essential to the full merits of the cause: yet, these difficulties have not prevailed against the jurisdiction of the court. They have been countervailed, and more than countervailed by the opposing consideration, that if the action be disallowed, the injured party may have a clear right without a remedy in a case where the person who has done the wrong, and who ought to make the compensation, is within the power of the court.

That this consideration should lose its influence, where the action pursues a thing not within the reach of the court, is of inevitable necessity; but for the loss of its influence where the remedy is against the person and can be afforded by the court, I have not

yet discerned a reason, other than a technical one, which can satis. fy my judgment.

If, however, this technical distinction be firmly established, if all other judges respect it, I cannot venture to disregard it.

The distinction taken is, that actions are deemed transitory, where transactions on which they are founded, might have taken place any where; but are local where their cause is in its nature necessarily local.

If this distinction be established; if judges have determined to carry their innovation on the old rule, no further; if, for a long course of time, under circumstances which have not changed, they have determined this to be the limit of their fiction, it would require a hardihood which I do not possess, to pass this limit.

This distinction has been repeatedly taken in the books, and re cognized by the best elementary writers, especially Judge Blackstone, from whose authority no man will lightly dissent. He expressly classes an action for a trespass on lands with those actions which demand their possession, and which are local, and makes only those actions transitory, which are brought on occurrences that might happen in any place. From the cases which support this distinction, no exception, I believe, is to he found among those that have been decided in court, on solemn argument.

One of the greatest judges who ever sat on any bench, and who has done more than any other, to remove those technical impediments which grew out of a different state of society, and too long continued to obstruct the course of substantial justice, was so struck with the weakness of the distinction, between taking jurisdiction in cases of contract respecting lands, and of torts committed on the same lands, that he attempted to abolish it. In the case of Mortyn vs. Fabrigas, Lord Mansfield stated the true distinction between proceedings which are in rem, in which the effect.of a judgment cannot be had, unless the thing lie within the reach of the court, and proceedings against the person where damages only are demanded. But this opinion was given in an action for a personal wrong which is admitted to be transitory. It has not, therefore, the authority to which it would be entitled, had this distinction been laid down in an action deemed local. It may be termed

an obiter dictum. He recites in that opinion, two cases decided by himself, in which an action was sustained for trespass on lands lying in the foreign dominions of his Britannic majesty; but both those decisions were at Nisi Prius. And though the overbearing influence of Lord Mansfield might have sustained them on a motion for a new trial, that motion never was made, and the principle did not obtain the sanction of the court. In a subsequent case, reported in 4 D. and E. these decisions are expressly referred to and overruled, and the old distinction is affirmed.

It has been said, that the decisions of British courts, made since the revolution, are not authority in this country. I admit it-but they are entitled to that respect which is due to the opinions of wise men, who have maturely studied the subject they decide.Had the regular course of decisions previous to the revolution, been against the distinction now asserted, and had the old rule been overthrown by adjudications made subsequent to that event, this Court might have felt itself bound to disregard them; but where the ancient date has been long preserved, and a modern attempt to overrule it, has itself been overruled since the revolution, I can consider the last adjudication in no other light than as the true declaration of the ancient rule.

According to the Common Law of England then, the distinction taken by the defendant's counsel, between actions local and transitory, is the true distinction, and an action of quare clausum fregit, is a local action.

This common law has been adopted by the legislature of Virginia. Had it not been adopted, I should have thought it in force. When our ancestors migrated to America, they brought with them the common law of their native country, so far as it was applicable to their new situation; and I do not conceive that the revolution would, in any degree, have changed the relations of man to man, or the law which regulated those relations. In breaking our political connection with the parent state, we did not break our connexion with each other. It remained subsequent to the ancient rules, until those rules should be changed by the competent autho, ity.

But it has been said, that this rule of the Common Law is impliedly changed by the Act of Assembly, which directs that a jury shall be summoned from the bystanders.

Were I to discuss the effect of this act in the courts of the state, the enquiry, whether the fiction already noticed was not equivalent to it in giving jurisdiction, would present itself. There are also other regulations, as, that the jurors should be citizens, which would deserve to be taken into view. But I pass over these considerations, because I am decidedly of opinion, that the jurisdiction of the Courts of the United States depends, exclusively, on the Constitution and Laws of the United States.

In considering the jurisdiction of the Circuit Courts, as defined in the judicial act, and in the Constitution which that act carries into execution, it is worthy of observation, that the jurisdiction of the court depends on the character of the parties, and that only the court of that district in which the defendant resides, or is found, can take jurisdiction of the cause. In a court so constituted, the argument drawn from the total failure of justice, should a trespasser be declared to be only amenable to the court of that district in which the land lies, and in which he will never be found, appeared to me to be entitled to peculiar weight. But according to the course of the Common Law, the process of the court must be executed in order to give it the right to try the cause, and consequently the same defect of justice might occur. Other judges have felt the weight of this argument, and have struggled ineffectually against the distinction, which produces the inconvenience of a clear right without a remedy.—I must submit to it.

The law upon the demurrer is in favour of the defendant.

DISTRICT COURT OF THE UNITED STATES.

GEORGIA.

Woodruff and Brant, Fountain, Hewitt and Others,

versus

Ship Levi Dearborn.

IN ADMIRALTY, 17th JULY, 1811.

[Where cordage and other materials are furnished, at the instance of the owner, to a vessel not on a voyage, but lying within the body of a county, no lien on the vessel is created, so as to affect her in the hands of a bona fide purchaser, without notice. Ex relatione-Stephens, Judge.]

Charlton, for the Claimant, argued,

1st. Whether the Admiralty Court has jurisdiction?

2d.-Whether, if a jurisdiction can be sustained, there can be a lien on this ship, under the particular facts and circumstances of the case?

First Point. As to the question of jurisdiction:

The Admiralty proceeds in rem, and therefore, if these are not charges upon the ship in specie, the court has no jurisdiction.

The most important matter under this head which presents itself for the consideration of the Court, is, whether it is to proceed according to the principles and doctrines of the CIVIL LAW, as it obtains in those nations, which have made it the foundation of their jurisprudence, or according to the MARITIME LAW, as it has been adopted and explained by the Courts of Great Britain. If, according to the CIVIL LAW, it is admitted that the ship is specifically liable.-Abbot, (Story's Edition) and the authorities there cited. 151, 152, 158.