
    
      FUSILIER vs. HENNEN.
    
    West'n District.
    
      August, 1822.
    Whether the lessor of a defendant, who disclaims, may be brought, in when he is not domiciliated in the parish? Quere.
    Appeal from the court of the fifth district.
    Brownson, for the plaintiff.
    This suit was brought to recover a narrow strip of land, lying in the parish of St. Mary, consisting of about one arpent front. Dr. James Hennen, who was living on the land at the time the suit was brought, was originally sued. He disclaimed title; stated in his answer, that the land belonged to A. Hennen, of New-Orleans, and that he was in possession as his tenant. The district court ordered, that A. Hennen should be cited in to defend the title, which was done.
    A. Hennen appeared in obedience to the citation, and, among other pleas, put in one to the jurisdiction of the district court, alleging that he habitually resided in New-Orleans, and that he could not be sued in the parish of St. Mary. The jurisdiction of the district court was, however, sustained, and in this the defendant contends there is error, which this court ought to correct.
    This question is one of considerable importance, and deserves a more careful examination than perhaps I shall be able to give it.
    
    
      In many, if not all countries, actions have been divided into local and transitory, and it appears to be a matter which concerns, in some measure, the public policy of nations, to settle what injuries, sustained in one country, shall receive redress in others. Actions concerning lands have, so far as my information extends, been uniformly regarded in all countries as local. In England, actions, real or mixed, as trespasses, quare clausum fregit, ejectment, waste, &c. must be laid in the very county in which the lands lie. Bac. Ab. Actions local and transitory.
    
    We all know the fate of Mr. Livingston’s suit against Mr. Jefferson, brought in Virginia, to recover damages for being dispossessed of the Batture. This suit too, it will be recollected, was brought in the circuit court of the United States. It was instituted within a particular district of that general jurisdiction, which includes within its limits the land on which the trespass was alleged to have been committed—and yet the court would not entertain jurisdiction. I might ask, whether a suit was ever brought in any court, in this or any other country, to recover possession of lands located beyond the jurisdiction of such court? Actions, to recover possession of lands, must be necessarily and essentially local. The judgment, when obtained, operates in rem—and how vain and nugatory would it be to bring suit in a court which could not carry into effect its own judgment.
    But the present, it will be said, is a different case. It will be urged, that executions from our district courts run into all parts of the state; and, therefore, that a judgment rendered in New-Orleans, may as well be carried into effect in the parish of St. Mary, as if it had been rendered in that parish. This may in fact be true. There are, however, other considerations, which have contributed to make these actions local, besides that of carrying into effect the judgments rendered in them. If a jury should be demanded, the policy of the law has generally been to take the jury from the neighbourhood in which the lands lie. The witnesses usually reside there, and it is often necessary to exhibit, by means of a survey, taken under the orders of the court, the localities and relative position of the object in contestation. All this is done with ease and convenience in a court sitting in the neighbourhood, but become tedious and expensive operations, when ordered and controlled by a distant tribunal. The testimony too, when the suit is brought in a parish different from that in which the lands lie, would have to be taken principally by deposition, which is much inferior to viva voce evidence, given in open court; more particularly on questions of contested limits.
    It will probably be argued, that it is the person, and not the subject matter in dispute, which regulates the jurisdiction of the court. And the acts of 1814, will, no doubt, be cited; which provides, that no person, having a permanent residence, shall be sued, in any civil action, in any other parish but that in which he shall habitually reside. 2 Martin's Dig. 204, n. 22.
    If this suit had been directed, in the first instance, against Alfred Hennen, it should doubtless have been commenced in the city of New-Orleans, where he resides, and not in the parish of St. Mary. But it is difficult to conceive a case,in which that could have been necessary. If the land had been vacant, the plaintiff would, no doubt, have gone quietly into possession, and no suit would have been necessary. But, as he found the land occupied, it was necessary to commence proceedings against him in possession. Suppose I admit, that it is the person, together with the place in which he resides, which regulates the jurisdiction of the court; I may then ask, what person? The defendant will probably tell me, that it is the person who claims to be the owner: but, I contend, that it is the person in possession. What is the injury complained of? It is the corporal possession and detention of the thing claimed. Who then is the immediate cause of the injury? Most certainly, the person in possession. And who but the author of this injury, ought the plaintiff to have attacked? If I find a person in possession of my property, to which I know he can have no right, am I to inquire what excuse he have to offer for withholding it from me? May I not attack him at once, and, through my legal remedy, compel him to relinquish that which belongs to me, and to which, I know, he can have no title? It will, perhaps, be said, that the possessor is often the innocent agent of another. But that is an affair between him and his principal, and we should be sure, when we consent to act as agents for another, that we do so in a lawful cause. The possessor must justify himself under the right of his principal; and if the principal had no right, it is clear he could communicate none.—Nemo plus juris ad alium transferre potest quam ipse haberet.
    
    There is besides another reason, arising from necessity, for pursuing against the person in possession, and that is, that a judgment against any other person would not be resjudicata against him, and could not authorize an execution to dispossess him. This necessity equally exists, whether the object of the suit be real or personal property, and whether the possessor holds the thing in his own right or in the name of another. In this suit, the plaintiff chiefly claims possession, and, as subsidiary to that, damages for depriving him of that possession. By whom can possession be given? Certainly by no one but the actual occupant. Any other person would be obliged to get possession from him, before he could transfer it to others. By action then the plaintiff has demanded possession, the thing which was due; and this possession is claimed of the only person who could be condemned to give it. Before the possession of the plaintiff can begin, the detention of the previous possessor must be made to cease.—The judgment must necessarily have this double effect, or the remedy would be incomplete. Hence, the absolute necessity of bringing suit against the person in possession: and this course is not left to be inferred by reasoning from any vague phraseology in the law, but is pointed out in clear and explicit language. It is not directed once merely, but frequently. Thus--In rem actio est, per quam rem nostram, quæ, ab alio possidetur, petimus, et semper adversus eum est qui rem possidet. Dig. lib. 44, tit. 7, l. 25.
    
      In rem actio non contra venditorem, sed contra possidentem competit. Cod. lib. 3, tit. 19, l. 1.
    It may be said that these laws contemplate the case of a person possessing in his own right, and are not applicable to those who possess in the name of another. The attention of the court is, therefore, particularly directed to the following law: Si quis alterius nomine quolibet modo possidens immobilem rem litem ab aliquo per in rem actionem sustineat, &c.—Cod. lib. 3, tit. 19, l. 2.
    This law, of which the above is a part only, the court will perceive, on examining it, relates particularly to the case of those who possess in the name of another, no matter by what title, and directs the proceeding, which, under such circumstances, must be had. It requires, the tenant in possession to make known to the court the name of the person in whose right he possesses. It orders, that the court shall grant a certain delay, in order that this person may be informed of the suit—and for what purpose? Why so that, whether he lives in the same city, whether in the country, or in another province, he may appear, by himself or attorney, to defend the suit in the place where the lands lie. It further states, that if, being thus cited, he does not appear within the time fixed by the court, prescription shall be deemed to be interrupted from the time of commencing the suit against the possessor. It proceeds to direct, that the court shall cite him, and if he still neglects to appear, that the plaintiff, after a summary examination, shall be put in possession. Here we find a plan of proceedings regularly marked out, and which embraces within its provisions precisely the case now before the court. It will be found too, on examining the law succeeding the one just cited, that, apparently suspecting some disposition to wander from proceedings, it checks this propensity, and brings us back to them—Actor rei forum sive in rem, sive in personam sit, actio sequitur, sed et in locis in quibus res propter quas contenditur, constitæ sunt, jubemus in rem actionem adversus possidentem moveri.—Code, lib. 3, tit. 19, l. 3.
    The cautious precision of this last law is not a little remarkable. It begins by saying, that the plaintiff follows the tribunal of the defendant, whether the action be real or personal; and as if apprehensive that these general expressions might, by construction, be extended too far, it immediately imposed a limitation upon them. It commands, that real actions shall be brought, not only against the person in possession, but also in the place where the thing forming the object of the suit is situated; so that, even if it were possible to possess a thing in a place where it is not situated, a proposition which only requires to be stated to show its absurdity, still the suit must be brought in the place where it is situated. These laws have been adopted in Spain, and consequently form a part of the common law of this country. Part. 3, 2, 29. Are they repealed by the statute of 1814? It will not be pretended that there is any express repeal. The repeal may, however, be implied, if the new law contains provisions “ contrary to or irreconcileable with those of the former law.” Civil Code, 5, art. 24. But, I shall be greatly in error if any thing “ contrary to or irreconcileable with former laws,” can be deduced from the statute of 1814. What is this statute but a confirmation of the Roman Law, which had said that the plaintiff follows the tribunal of the defendant? And where is the inconsistency between that and another rule, that in real actions the person in possession must be sued? I can see none, nor do I believe that the defendant can show any.
    If the person really in possession must be sued, it is evident that the suit must be brought in the place where the lands lie; because, that is the place in which he possesses. But the gentleman may say, that he possesses constructively in New-Orleans. I answer to that, that the possession spoken of means a real and not a constructive one; because it is the real possession which creates the injury; and there can be no constructive possession by one person, without a real possession by another. It is true, the real possession of the tenant is the constructive possession of the landlord; and the law has, from an indulgent spirit, granted certain privileges to the latter, after the suit shall have been commenced against the former. But then it has left it optional with the landlord to avail himself of these privileges or not, as he may deem adviseable. The law will not permit him to lose even his constructive possession, which depends upon the real possession of his tenant, without giving him a fair opportunity for disputing the pretensions of him who seeks to deprive him of it. It therefore provides, that he shall be notified, and that reasonable time shall be allowed for him to appear and defend the suit. But this notice, which the law requires, cannot, it appears to me, be construed into a suit against the landlord. I consider it rather in the light of an extra privilege, accorded by the law on account of the interest he may have, to protect his own constructive possession, by maintaining the real possession of his tenant; a privilege, perhaps, indulged somewhat at the expense of rigorous justice on the part of him who brings the suit, but which is nevertheless wisely accorded to prevent greater injustice.
    Let us suppose the proceeding changed, and that the suit, instead of being brought against the tenant, had been brought against the landlord, in the first instance. Did the gentleman ever hear of a tenant being cited in to defend the title of his landlord? This would be to reverse the natural order of things. The right of the tenant is subordinate to that of the landlord. The latter, therefore, cannot be assisted by the former; for, if the landlord had no right, it is clear the tenant can have none to strengthen it with. The consequence of such a proceeding would therefore be, either that, the tenant must be turned out of possession by the bare effect of the judgment against the landlord, and consequently without giving him any opportunity to contest the propriety of that judgment, or that another suit would be subsequently necessary against the tenant. The first alternative would produce great injustice towards the tenant. Perhaps, if an opportunity were allowed, he might deny that he occupied as tenant—he might pretend, and possibly prove, that he possessed in his own right—he might even be able to exhibit a legal title in himself. How could it be known with necessary certainty, except by bringing suit against him, in what character or capacity he held?
    
      The second alternative is attended with costs arising from multiplicity of actions, with unnecessary delay, besides many awkward incidental embarrassments, which could never grow out of the regular proceeding. I am certain that, unless the gentleman can show some pretty strong authority for his pretensions, the court cannot be disposed to adopt a proceeding which carries in its train such consequences.
    Hennen, in propriâ personâ. The question presented for the consideration of the court is, that of jurisdiction. Was the defendant, Alfred Hennen, domiciliated in the parish of Orleans, liable to an action in the parish of St. Mary?
    On the 27th August, 1817, the plaintiff filed a petition in the district court for the parish of St. Mary, against James Hennen, to recover the possession of a certain tract of land, situated in the last mentioned parish; of which he avers, that the said James Hennen is in possession, but of which he is the lawful owner. James Hennen disclaims any title to the tract of land; and avers, that he holds it only as the tenant of the present defendant. Alfred Hennen; who thereon is served with a copy of the original petition, by order of the court; and against him only, all subsequent proceedings are conducted; the original defendant having been considered as no longer a party.
    A plea to the jurisdiction of the court is made by the defendant, with other pleas and exceptions: also, a general denial is put in to the action, which is in conformity with the practice of our district courts, as established by the statute, (2 Mart. Dig. 154, n. 5,) and expounded by the decisions of this court. 4 Mart. 172, Tricou vs. Bayon, and Mart. 711, Rippey vs. Dromgoole. Curia Philip. Excep. Dilat. Nos. 7 & 8, 12 Mart, 100. For, to use the words of the court, “ a defendant is bound to include, in the same answer, all his means of defence;” and from the passing of the statute, “ it became the duty of defendants to file their allegations on the merits of the cause; and, at the same time, such exceptions as they wish to avail themselves of.” 4 Martin, 172. The judge of the district court, however, considered this manner of answering as inadmissible, and as a renunciation of the plea to the jurisdiction: and admitting the fact that the defendant was domiciliated in the parish of Orleans, overruled all his pleas and exceptions, and went on to a decision of the merits of the cause.
    The legislature of 1814, Acts, page 74, (2 Mart. Dig. 204, n. 22.) had enacted that, “no person or persons, having a permanent residence, shall be sued in any civil action in any other parish but in that wherein he, she, or they shall habitually reside, any law to the contrary notwithstanding." This was nothing more than a recognition of the ancient law of the land. “ Actor rei forum, sive in rem, sive in personam sit actio, sequitur.” Code, 3, 19, 3; 6 Febrero, 13. n. 33-36. Part. 3, 2, 32, & Part. 3, 3, 4. But the plaintiff's counsel, admitting the authority of this law, wishes to bring the defendant within the case provided by the Acts of 1817, page 28, § 6. Unfortunately, however, for his argument, there is but one defendant interested in the present suit; for but one makes claim to the land re-vindicated, and he resides habitually in the parish of Orleans. In vain, therefore, is this section invoked, for it can have no application to the pleadings of the cause; which, to make it applicable, should show, that two or more defendants in the land; and that one of them resides in the parish where the land is situated.
    The plea then to the jurisdiction of the court, I consider as properly made, and as illegally overruled. The suit, therefore, should have been dismissed; and what the judge of the inferior court should have done, is now solicited from this honourable tribunal, that the defendant may have the full advantage of the laws which secured him from being sued out of his parish.
    The wisdom, justice, and policy of the Roman maxim of jurisprudence, actor rei sequitur forum, has been perceived and admitted by legislators of almost every civilized country.
    And where the defendant reserves his right of exceptions, though pleading to the merits, he might afterwards put in a plea to the jurisdiction of the court, (according to the Spanish law, Curia Philip. “Excepciones Dilatorias,”nos. 7 & 8, & 12. Martin, 100.) Thereby, always securing the defendant against the jurisdiction of a judge, who by law has none.
    But the plaintiff may urge, that he instituted his suit against the person holding possession of the land; as directed by the Partidas, 3, 2, 
      29 extracted from the Justinian Code, 3, 19, 2. Had the plaintiff been ignorant of the owner of the land, or the person claiming it as such, his course would have been correct; in order that it might be declared on the record, whether the defendant sued was owner or not; and for no other purpose was the law established. The lessee of land, however, is not liable to any action; if sued, on naming his lessor, he is entitled to be dismissed. (mis hors d'instance;) and the party claiming the land, must proceed de novo, against the lessor. Civ. Code. 377, art. 25. (Code Napoleon, n.1727— from which the 25th art. of the Civil Code, above cited, is literally copied.) Pothier, Contrat de Louage. nos. 90—91.—5 Merlin, Repertoire de Jurisp. 456, verbo Garantie.
    
    
      Ce n’est pas contre un fermier ou locataire que procedent les actions des tiers qui prétendent le droit de propriété ou quelque autre droit dans l'heritage qui lui a été donné á ferme ou á loyer; mais contre le locateur de qui il les tient à loyer ou à ferme, et qui est le vrai possesseur del’héritage: et sile locataire ou fermier est assigné par un tiers sur quelqu'une de ces actions, il n'est pas obligé de defendre ni par lui même, ni par un autre; il n'a pas même qualité pour le faire; il n'est obligé a autre chose qu'à 
      
      indiquer au demandeur la personne de qui il tient l'heritage á loyer ou á ferme; et sur cette indication, il doit être renvoyé de la demande, et le demandeur renvoyé á se pouvoir contre cette personne. Pothier, Contrat de Louage, no. 91.
    
      Quand un locataire ou fermier est appelé en justice par un tiers qui conclut contre lui à ce qu'il soit condamné à délaisser héritage dont il jouit, il suffit au locataire ou fermier d'indiquer á ce tiers le nom de son bailleur, ofin qu'il se pourvoie contre lui, Jousse, sur l’article 1, tit. 8 de l'ordonnance de 1667.
    
      Effectivement, Papon. liv. 11, tit. 4. n. 18. et Robert, rerum Judicaturum. liv. 4, chap. 9, rapportent deux arrets du parlement de Paris, des 24 Septembre, 1563. et 26 Septembre, 1579, qui ont jugé qu'un fermier assigné en délaissement d'un héritage, qu'il occupe en vertu de son bail, doit obtenir congé de la demande en déclínant le nom de son bailleur, et qu'il n'est pas obligé de le mettre en cause.
    
    
      Mais l’article 1727 du Code Napoleon ne déroge-t-il pas á notre jurisprudence? Voici ses termes: (literally the same with the Civil Code.)
    
    
      Ces derniers termes, et doit étre mis hors de cause s'il l'exige, en nommant le bailleur, présentent, comme l'on voit, une disposition parfaitement conforme aux, arréts cités. Mais cette disposition n'est 
      elle pas contrariée par celle qui résulte des termes précédens, il doit appeler le bailleur en Garantie?
    
    Il faut convenir qu’á la première vue, ces deux dispositions paraissent s'éntre-détruire. Si le fermier doit être mis hors de cause, du moment qu'il nomme son bailleur, il ne peut pas étre tenu d’appeler son bailleur en Garantie; et s'il est tenu d’appeler son bailleur en Garantie, il ne lui suffit pas de nommer son bailleur pour être mis hors de cause. Il faut done chercher un moyen de concilier ces deux dispositions; car on ne peut pas supposer qu'une antinomie aussi palpable soit échappée au législateur dans un même article; et ce moyen se présente de lui même, en distinguant ce à quoi est tenu le fermier envers son bailleur, d'avec ce à quoi il est tenu envers le demandeur en délaissement.
    
    
      Le demandeur en délaissement á qui le fermier a decliné le nom de son bailleur, pourrait-il, á défaut de mise en cause de celui-ci, obtenir un jugement contre celui-la? Non certainement. Le jugement par lequel le fermier serait condamné au délaissement en l'absence du bailleur, serait sans effet contre le bailleur lui-même. Le fermier ne nuit donc pas au demandeur en délaissement, par le défaut de mise en cause du bailleur; et dès qu'il ne lui nuit pas, il est bien evident que le demandeur en délaissement n'a point d'action contre lui de ce chef 
      
      Concoit-on d'ailleurs comment le demandeur en délaissement pourrait, en assignant le fermier, se soustraire a la régle générale qui l'oblige d'assigner le bailleur à personne ou à domicile? C'est donc envers le demandeur en délaissement que le fermier doit être mis hors de cause, s'il l'exige, en nommant le bailleur pour lequel il possede.
    
    
      Mais si le fermier n'est tenu à l'egard du demandeur en délaissment, qu'á nommer son bailleur, il a, un autre devoir à remplir envers son bailleur même: il doit lui dénoncer le trouble qu'il éprouve dans sa possession; il doit en prévenant toute surprise de la part du demandeur en délaissement, mettre son bailleur á portée de se defendre; et comme en cas d'éviction, son bailleur lui devra des dommáges-intérêts, il doit l'appeler en Garantie.—5 Merlin, Répertoire de Jurisprudence, 456, verbo Garantie, Paillet, Manuel de Droit, 5th ed. Code Nap. art. 1727, quotes this extract from Merlin as the correct exposition of the article.-See Pothier-Propriété, nos.-297-298. Pothier, Traité de l'Hypotheque, 12mo. ed. 154, chap. 2, sec. 1, art. 1.
    Even in cases of warranty on sales, where the object appears to be to entertain a suit against the warrantor, out of the jurisdiction of his domicil, the suit would be dismissed,— Pothier, Procedure Civile, chap. 2, sec. 6, art. 2, § 3. So carefully does the law guard against every attempt to withdraw a defendant from the jurisdiction acquired by a domicil.
    The Partida, 3, 2, 29, only provides for the case where the owner will not appear, and then grants the remedy of asentamiento; to make him answer, or contest the right of the plaintiff-See Curia Philip. Contestacion. n. 12. This law too must be considered as repealed by the article of the Civil Code. 377, n. 25.— See Novissima Recop. lib. 11. t. 5, and Part. 3. tit. 8.
    By the Spanish practice it was not necessary to cite the lessee—Curia Philip. "Citacion," n.7. If not necessary, a suit against him could not, and would not give jurisdiction against his lessor.
    A suit against the lessee does not even serve to interrupt prescription in favor of the lessor. Pothier, "Prescription," n. 52. It will be interrupted only from the date of the new suit instituted against the lessor.—ib. So completely irregular and useless is it, to institute a suit against the lessee instead of the lessor, the real possessor of the estate.
    The only authorities produced by the counsel for the plaintiff, in support of the jurisdiction of the court, are drawn from the rescripts of Roman emperors, prescribing the rules of practice for the courts of justice in the different provinces of the empire. Now, the practice in those courts, can have no binding authority in the tribunals of Louisiana, when at variance with the statutes of her legislature. It is evident, from the authors on French jurisprudence which I have quoted, that the practice in the tribunals of France, is directly the reverse of that which was followed in those of Rome. The common law of France was introduced into Louisiana by the emigrants from that country, and remained in force until the country was taken possession of by Spain. Nothing opposed to the French law, has been shown from any author on the Spanish law; on the contrary, I have cited authorities to prove, that the jurisprudence of those two countries are in harmony. The statute of 1814 then, was only declaratory of the French and Spanish practice.
    The distinction of local and transitory actions, is a creature of the Common law, and unknown in the Roman civil law. It is nugatory then for the plaintiff's counsel to found an argument on such distinction. Had Mr. Livingston, after having been dispossessed of his Batture by Mr. Jefferson, sued him for damages, in any country in Europe, governed by the civil law, he could have obtained a judgment, had there been no greater obstacle in his way than a plea to the jurisdiction of the court. So, should the plaintiff sue the defendant in the courts of his domicil, every redress which justice can yield, will easily be obtained, and carried into execution against him. The defendant is willing to meet the plaintiff there.
   Porter, J.

declining to sit, on account of his having been of counsel in the cause, and Mathews, J. having some interest in the question, although both parties had entered on record their willingness to argue the case before him, from motives of delicacy, declined giving an opinion. The decision was postponed.  