
    Roach vs. Damron, et al.
    
    1. Trespass guare clausum fregit is a local action, and the land upon which the trespass is committed, must be proved to lays in the county in which the action ia brought. A verdict does not cure deficiency of proof in this respect.
    2. The fact, that A. has personal property within the enclosure of B., does not authorise A. to enter the enclosure of B. for tho purpose of taking his property. He should demand it of the owner of the land, and if he refused him permission to take it, such refusal would be evidence of a conversion, for which an action of tro-ver would lie.
    James Roach instituted an action of trespass guare clausum fregit in the circuit court of Knox county, on the 28th of May, 1840, against John Damron and George Arnold. At the June term, the plaintiff declared, 1st, that he was lawfully possessed of a certain tract of land, in the county of Knox, and that the defendants without right, with force and ai’ms, entered upon the land, threw down the fences, by which the land was enclosed, and there* by, fourteen head of cattle, belonging to the plaintiff, made their escape and were lost to the plaintiff.
    
      2. That the defendants entered upon the premises, so enclosed by* fences, with a wagon, horses and mules, and seised, took and car* ried away twenty loads of stone, of the value of two dollars per load.
    The defendants pleaded not guilty, and issue was taken upon this plea.
    At the February term, 1841, Judge Scott presiding, the cause was submitted to a jury.
    It appeared in evidence, that one McCampbell being the owner of the land, told Graves and Hamer that they could have a quantity of stone situated on it, if they would get it out of the quarry in his woodland, then not enclosed. That said Graves did, by blowing, get a large quantity of it out, and piled it up. That McOamp-bell sold the place to McMillan, and before the sale, mentioned this circumstance to McMillan. That plaintiff took possession of the premises as tenant of McMillan, enclosed the woodland in which the rock lay and placed in it four head of beef cattle which he had bought in an adjoining county. That the defendants came with a wagon and team, and pulled down the fence and hauled away twenty loads of stone, of the value of one dollar per load. That they left the fence down one night and that the cattle, of the value of sixty dollars, during the period they were engaged in hauling, had made their escape and had not been recaptured.
    The defendants proved, that they had purchased the stone so quarried at thirty-seven and a*half cents per load of Graves and Hamer. That the stone could not be got at and hauled out by any other way, without incurring great labor and inconvenience. That they did not do any damage to the premises. That they generally put up the fence, and that the fence was insufficient to hold wild and unruly cattle, in many places. They further proved, that they carefully put up the fence when they finished hauling.
    There was no testimony submitted to the jury, that this land lay in the county of Knox.
    Judge Scott charged the jury, that the defendants had no right to throw down the plaintiff’s fence and enter upon the premises to carry away the stone, and that the plaintiff had no right to recover the value of the stone.
    
      The jury rendered a verdict for the plaintiff, for the sum of sixty dollars.
    The defendants having moved the court for a new trial, and the motion being overruled, appealed in error to the supreme court.
    
      Crozier and Anderson, for the plaintiffs in error.
    
      Swan ¿c Alexander, for defendant in error.
   Gkeeií, J.

delivered the opinion of the court.

This is an an action of trespass, for breaking and entering the plaintiff’s close. In its nature, it is a local action, the court of the county in which the land is situated, alone having jurisdiction. In such action, it is necessary that the venue be proved. A verdict will not cure a deficiency of proof. If, as argued, we were to presume that there was proof of this fact, because the jury have found a verdict affirming its existence, why might we not in every case, presume there was evidence sufficient to justify the verdict? If that were so, no new trial could be obtained on account of a deficiency of proof.

The record asserts, that it embodies all the evidence that was given in the case. There is in it, no evidence that the trespass was committed in Knox county. On that account, the judgment must be reversed, and a new trial awarded. There was no error in the charge of the court to the jury.

The fact, that one man has personal property within the enclosure of another, does not authorise the owner of such property, to enter the enclosure, for the purpose of taking such property in his possession. He should demand it of the owner of the land, and if he refuse him permission to take it, such refusal would be evidence of a conversion, for which an action would lie.

Let the judgment be reversed.

Note. — A circuit court of the United States cannot take cognizance of an action of trespass quare clausum fregit committed on lands within the United States, but out of the district in which the court is held. Livingston vs. Jefferson, 4 Hall’s Am. L. Jour. 68.

On the second point — See 7 Bac. Ab. Dodd’s Edition, Title, Trespass, p. 676: 2 Leigh’sN. P. 1440: Parker vs. Staniland, 11 East, 336: 1 Leigh’s N. P. 581: Heermance vs. Vernoy, 6 John. Rep. 5.  