Elliott v. Hall , 8 Ala. 508 ( 1845 )

GOLDTHWAITE, J

When the County Court was established in 1807, it was excluded from all jurisdiction over real actions, actions of ejectment, and of trespass quare clausum fregit. [Dig. 207, § 5.] When .this Court was reconstituted in 1819, it was invested with concurrent jurisdiction with the Circuit Court, of all actions of debt, assumpsit, case, covenant, trespass, and assault and battery. [Ib. § 7.] We think the evident intention of the Legislature, by the use of the term trespass in this connexion, was, to invest the Court with jurisdiction of the action of trespass, as a remedy for injuries to personal property, and that the exclusion prescribed by the act of 1807, yet continues. In many of the States, trespass quare clausum fregit is the common action in which the title to real estate is determined; and even with us is permitted for that purpose. Whatever reason may have induced this exclusion in the first instance, it seems clear that no attempt has ever been made to authorise that Court to take cognizance of suits involving an enquiry into the title of land. In the form of action here presented, this might form the prominent subject for investigation, as the defendant, under the general issue, would be permitted to show title in himself; and by a plea of liberum len-ementum, could compel the plaintiff to new assign, and select the specific boundaries of that alledgcd to be trespassed upon. [1 Chitty, 496.]

As the Court had no jurisdiction of so much of the action as is for breaking the close, it is unnecesary to consider whether the plea answers that part of the count which asserts the breaking and destroying of the personal chattels, as there is but one count, and that for a matter without the jurisdiction.

The judgment must be reversed and remanded, as it is possible from the form of the writ, that a proper count in trespass may be framed on it.

Reversed and remanded.