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February 1, 1808


ERROR to the circuit court for the district of Connecticut.

Dwight and others brought a foreign attachment against Pollard and Pickett, in the county court of Hartford, and declared in an action of covenant upon a deed of bargain and sale, in fee-simple, of certain lands in the county of Wythe, and commonwealth of Virginia, by which the defendants below covenanted that they were 'lawfully seised of the lands and premises, with their appurtenances, and had good right and lawful authority to sell and convey the same, in manner and form aforesaid;' and the breach assigned was, 'that they were not, nor were any or either of them lawfully seised and possessed of any estate whatever in the said land and premises, nor in any part thereof, nor had the said Pollard and Pickett, or either of them, good right and lawful authority to sell and convey the said land and premises as aforesaid.'

The defendants appeared, and removed the cause to the circuit court of the United States for the district of Connecticut, and there pleaded to the jurisdiction of the court, and prayed 'judgment whether the honourable Pierpont Edwards, district judge of the district of Connecticut holding said court, there being no justice of the supreme court of the United States present in court, will have cognizance of the said cause, because they say that, by the law of the United States, the circuit court of the second circuit in the district of Connecticut, shall consist of the justice of the supreme court residing in the third circuit, and the district judge of the district of Connecticut; and that when the said law was enacted, viz. on the 3d of March, 1803, the honourable William Paterson was the only justice of the supreme court residing in the said third circuit, and that he died on or about the 10th of September last past, and that there is not now, nor hath there been, since the death of the said Paterson, any justice of the supreme court residing in the said third circuit; and there hath not been by the supreme court of the United States, cr by the president of the United States, any allotment of a chief justice or an associate justice of the supreme court of the United States to the said second circuit, and this they are ready to verify,' &c. which plea, upon general demurrer, was overruled, and a respondeas ouster awarded, whereupon the defendants pleaded that they were, at the date of the deed, 'well seised and possessed of the said land, and had good right to bargain and sell the same, in manner as is alleged in the said deed, and so they have kept and performed their said covenants, and of this put themselves on the country,'–'and the plaintiffs likewise.'

The verdict was for the plaintiffs, and damages assessed to 27,497 dollars. The defendants moved in arrest of judgment, because it appears, by the declaration, that the said deed was executed, and the lands lie in the state of Virginia; and because the declaration is insufficient, and will not support any judgment; but the motion was overruled, and judgment rendered on the verdict.

On the trial, a bill of exceptions was taken, which stated that the defendants claimed to be seised under a patent to them from the governor of Virginia, dated March 20, 1795, and grounded on a survey in favour of David Patterson, by virtue of an entry, dated September 1, 1794, on sundry treasury warrants to the amount of 150,000 acres, and completed on the 8th day of September, 1794, which survey had been assigned to the defendant, Pollard; whereupon the plaintiffs offered to read in evidence copies of two surveys made for one Wilson Carey Nicholas, by virtue of two entries made on the same 1st of September, 1794, in the office of the same surveyor, one to the amount of 500,000 acres, and the other to the amount of 480,000 acres, the greater part of which laid in the county of Wythe, and bounding on the land surveyed for Patterson; and that the said survey for 500,000 acres purported to be completed on the 9th of September, 1794, and that for 480,000 on the 10th of the same month, and that the extent of all the lines of the said surveys was more than 320 miles; and offered to prove by Erastus Granger, that the nearest part of the said lands to the office of the surveyor of Wythe county, was distant therefrom two days' journey; and that a surveyor could not, in that county, survey a line longer than seven miles in a day; and that he (Erastus Granger) had surveyed the land surveyed for Patterson, and found marked trees only for about three or four miles from the starting point of the survey, and two or three only of the first corners mentioned in the survey, and that the streams ran in opposite directions to those laid down in the plot; which testimony of the said Granger was offered to prove that Patterson's survey was fraudulent, and not made conformably to the laws of Virginia; and the plaintiffs further offered to prove, by the testimony of the said Granger, that there were prior claims upon the land in question to the amount of upwards of 90,000 acres. It was admitted that Granger was not a sworn surveyor. The defendants objected to the above evidence, but the court overruled the objection, and suffered it to go to the jury.

The defendants sued out their writ of error to this court, and the errors assigned were,

1. That the plea to the jurisdiction ought to have been allowed.

2. That the evidence stated in the bill of exceptions ought not to have been admitted.

3. That the declaration is insufficient.

4. That the title of the land could not be tried in Connecticut.

5. That the circuit court had not jurisdiction, the plaintiffs being citizens of Massachusetts and Connecticut, and the defendants citizens of Virginia, not found in the district of Connecticut.

6. That the judgment ought to have been rendered for the defendants.

C. Lee, for the plaintiffs in error.

This is a prosecution against an absentee for breach of covenant.

The act of Connecticut only authorises such process against a debtor, not against a man who may be liable for unliquidated damages on a breach of covenant. The words of the Connecticut law, fol. 35. are, 'absent or absconding debtors,' and the defendants are so called in the declaration. It could never be the intention of the legislature of Connecticut to try the title to land in Virginia by the process of foreign attachment in Connecticut.

Two questions arise in this cause.

1. Whether the circuit court had jurisdiction; and,

2. Whether the evidence stated in the bill of exceptions was admissible.

1. The law is the same in this case on the point of jurisdiction, as if the suit had been originally commenced in the circuit court. Laws U. S. vol. 1. p. 56. s. 12. and by the 11th section of the same act, the circuit court has no jurisdiction but over inhabitants of the state, or over persons found therein and served with Process. Vol. 1. p. 55. Process by attachment on effects of persons not inhabitants, cannot be maintained in the circuit courts of the United States. 2 Dall. 396. Hollingsworth v. Adams.

A plaintiff may assign for error the want of jurisdiction in that court to which he has chosen to resort. Capron v. Van Noorden, (ante, vol. 2. p. 126.) Beecher's case, 8 Co. 59. Bernard v. Bernard, 1 Lev. 289. And in the case of Diggs and Keith v. Wolcott, in this court, at last term, (ante, p. 179.) the appellants had removed the cause from the state court to the circuit court, who decreed against them, and on their appeal to this court the decree was reversed for want of jurisdiction in the circuit court.

Where the court has a limited jurisdiction, the facts which bring the case within that jurisdiction must appear on the record. 9 Mod. 95. 3 Dall. 382. Bingham v. Cabot. 2 Cranch, Wood v. Wagnon.

Upon the demurrer to the plea to the jurisdiction, the whole record is open to examination; and the defendant may avail himself of every substantial objection to the declaration, or to the writ, as it is made a part of the record. The declaration itself shows that the lands which are the subject of the covenant are in the state of Virginia; that the deed was there executed; and that the title of those lands is drawn in question. It appears, then, upon the face of the declaration, that the action is local, and can be tried only in Virginia. The declaration also states Pollard and Pickett to be 'of the county of Henrico and state of Virginia,' and that they are ...

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