Gibbons v. Ogden
6 N.J.L. 347
| N.J. | 1822
Kirkpatrick, C. J.

This is an action on the case, founded upon what is commonly called the steamboat law, *362for enjoining and restraining the plaintiff from navigating the waters between the state of New Jersey and the state of New York with his steamboat. To the declaration of the plaintiff, the defendant has demurred specially, and for causes of demurrer, has assigned, in substance, the six following :

1. That it is not averred in the declaration, that the cause of action accrued after the passing of the act.

2. That the cause of actio'n is -in its nature local; that the declaration lays the venue in the county of Essex, and yet has shewn no cause of action arising there, nor made any sufficient averment to maintain his suit there.

3. That the declaration charges the defendant with acts done in the waters lying betwreen the ancient shores of the two states, which-waters are partly within the territory of New York, and partly within the territory of New Jersey, without, averring or setting forth any act done in either of the said states in particular, so that the defendant cannot plead with safety.

4. That the injunction and order of the Court of Chancery of New York, stated in the declaration, respect the waters of the bay of New York only; that these waters do not lie between the ancient shores of the two states, and therefore are not within the view of the act upon which the action is founded.

5. That the declaration, as the only ground of action, charges the defendant with .certain acts and things done in the state of New York, by virtue and in pursuance of certain orders, decrees, and judicial proceedings of the Court of-Chancery there, upon a subject matter within its cognizance and jurisdiction, and that, therefore, the defendant hath no need, nor can he be put, to answer.

6. That the action is grounded upon certain facts, records, and judicial proceedings of the state of New York, and yet, that the declaration does not set them forth with such certainty and precision as that the defendant can safely plead.

*363All these causes, except the fifth, go to matters of form, and to me appear to be insufficient to bar the plaintiff: for First. The act upon which the suit is founded is a public act, and the court will take notice of it, and of the time it was passed, without recital or averment. It is, therefore, sufficient that the enjoining is laid to bo after it went into operation, without specially averring that it was so. Secondly. The action is not in its nature local, but transitory. Even a direct act of violence done in the state of New York, if it does not respect the realty, may be laid hero. The case of Flatt et al. v. Abrahams and Roff, 2 South Rep. 544, was trespass for running foul of the plaintiff’s schooner and sinking her near Governor’s Island, in the bay of New York; and yet the venue -was laid at Newark, in the county of Essex, and the action was maintained here, and tried upon that venue. It is a general principle, that if a thing be done out of the realm which is ground of a personal action, the action may be brought in any county within the realm; and :f, from the nature of the transaction, or the date of the contract, it becomes necessary to state the place ■where it was done truly, it shall be so stated, but then, in order to give a venue, that place shall be alleged to bo at some place certain in the county where the venue is laid; and this allegation is not traversable; it is a fiction introduced for the furtherance of justice, manifestly not true in itself, but necessary as matter of form. This principle is established in the case of Roberts v. Harnaze, Salk. 660, and in the case of Mostyn v. Fabrigus, Cowp. 180. Besides, there is no need of fiction in this case, for the plaintiff is alleged to be a citizen of New Jersey, residing at Elizabeth-> town, in the county of Essex. The restraint was put upon him there; the damage was sustained by him there; and the means or instrument of restraint being brought from the state of New York does not alter the case. The venue, therefore, without any fiction, must have been there. Thirdly. The act upon which this action is founded *364goes upon the principle, that we have a right to navigate all the. waters lying between the ancient shores of these two states; and it is expressly averred in the declaration, that the waters of the bay of New York, which the plaintiff was restrained from navigating, do lie between those ancient shores. In an action upon this act, therefore, it cannot (be necessary for the plaintiff to go further, and to state what part of these waters is claimed to be within the territory and jurisdiction of the state of New Jersey, and what, within the territory and jurisdiction o'f the state of New York ;; for, in the contemplation of the act, that is an immaterial circumstance. If it was material for the defendant to bring up that matter, or if he would found a defence upon it, he ought to have done so by pleading. Fourthly. Though "it should be true, that the waters of the bay of New York are no part of the waters lying between the ancient shores of the two states, and that, therefore, the enjoining and restraining of the plaintiff from navigating those waters, are not within the words of the act, yet inasmuch as they are averred in the declaration, to lie between these shores, the question becomes a matter of fact, to be tried by a jury, and cannot be determined by the court upon demurrer. Until that matter be tried, therefore, it must be taken upon the strength of. the averment in the declaration, that the defendant did enjoin and restrain the plaintiff from navigating the waters described in the aot, that is to say, the waters lying between the ancient shores of these two states. And as to the sixth causé, it is ■ to be observed, that the restraint is the injury complained of, and that the proceedings of the Court of Chancery in New York are but the inducement, and therefore not necessary to be set out specifically; and that even if ,t-hat were necessary, it is sufficiently done. It certainly could not be incumbent on the plaintiff to recite them verbatim, or to give the tenor of them. This would be contrary to all the rules of pleading. As to these causes, therefore, which go to mere matters of form, I think, as I *365before said, that they are not sufficient to bar the plaintiff. But, as to the fifth cause. Though from the reasons which I have stated in the case of Livingston v. Gibbons, in this term, I should incline to the opinion, that no action can be maintained upon the case stated in this declaration; yet from a real diffidence in rny own judgment upon this question, especially when set in opposition to that of the chancellor, and from a full persuasion that it will be better for both parties to let the judgment be entered for the plaintiff here, and the case be carried up, by appeal, to a superior judicatory, to which great constitutional questions of this kind ultimately belong, and which have the power of putting them finally to rest, I have thought it safest and best, upon the whole, to say, that the demurrer must be overruled.

Ford, J. concurred.

Ross ell, J. dissented.

Demurrer overruled.