Molony a. Dows,

priately examined, and can be better ascertained within the limits of the State where it occurred, than before the tribunals of other States or of other countries. The duty of any government or State to protect the person of the citizen against unlawful violence, and to enforce his right to reparation from the wrongdoer who lays violent hands upon him, is founded upon the principle laid down by Lord Coke in Calvin's case, that allegiance and protection are reciprocal; and hence, as between British subjects, wherever throughout the British dominions the reciprocal obligation of allegiance and protection extends, the courts of Westminster Hall have entertained jurisdiction of actions for injuries to the person. Within this class are the many cases cited upon the argument, in which the governors of distant colonies, or official persons, have been held to answer for personal torts.

The case of Rafael a. Verelst (2 W. Blacks., 1055) forms no exception; for, although the unlawful seizure of the plaintiff's person in that case was in the province of Oude, in the dominions of Sujah Dowlah, an independent prince, the plaintiff's imprisonment was continued in the province of Bengal, of which the defendant was president. The British courts, moreover, in recognition of the duty of British subjects to obey the laws, will hold them amenable for injuries done within the British dominions to strangers or foreigners. This was the case of Rafael in the case just referred to, who was an Armenian merchant; but it is more strongly illustrated by the case of Tivelat a. Morrison (Yelv., 198), in which a merchant of Brabant, trading in England, maintained an action against a British subject for calling him a bankrupt in England; and in Pisani a. Lawson (9 Bing. N. C., 90), in which a foreigner, residing and living at the time in Constantinople, maintained an action in the Common Pleas for a libel published concerning him in England.

Resident strangers or foreigners, as they owe obedience to the laws, are entitled to the protection of the laws; hence, in English courts, actions between foreigners for injuries to person or property occurring within the British dominions may be maintained; but this is the limit, and I think no case will be found in the whole course of English jurisprudence in which an action for an injury to the person, inflicted by one foreigner

Molony a. Dows.

upon another in a foreign country, was ever held to be maintainable in an English court.

The only thing bearing upon the subject is the remark of Lord Mansfield in Mostyn a. Fabrigas (1 Cowp., 161), in which he questions the existence of the right. The absence of all authority in England upon such a point is almost as conclusive as an express adjudication denying the existence of such a right.

In this country, and especially in this State, actions for injuries to the person occurring upon the high seas, even as between foreigners, have been allowed; but in the leading case, Gardener a. Thomas (14 Johns., 134), the distinction is taken by the court that the injury occurred without the actual or exclusive territory of any nation; and it may be said, in consonance with the principles here recognized, that a similar rule would apply where the injury is done in a country or place where there is no government or tribunal to afford redress. In our country, the principle of the reciprocal duties of obedience and protection equally applies. The citizen owes obedience to the general government, and the general government affords him protection. as far as its constitutional power or limit extends. Beyond that, this reciprocal relation subsists between him and the government of the particular State of which, for the time being, he is a member, which in that respect has all the powers and attributes of a sovereign State; and it is to that State that he trusts chiefly for the security of his person, through the operation of the laws it has enacted for his protection and benefit. If an assault is made upon his person, he has such remedy as the laws of the State provide, to which, for the time being, he belonged, and where the wrong was done him; and as the act is not only an injury to him, but also a disturbance of the peace and good order of the people of that State, and as both considerations enter into and affect the civil action for damages, I think the action maintainable only in the State where the unlawful act was done.

Two cases cited upon the argument are not reconcilable with the conclusion here arrived at. It was held in Walls a. Thomas (2 Bibb., 458), in 1802, that though the injury was inflicted in the territory of Indiana, an action was maintainable in the court of Kentucky; but the decision was put upon the ground

Molony a. Dows.

that the point was decided in Mostyn a. Fabrigas (1 Cowp.)— a clear misapprehension on the part of the court, as no such point arose in that case, or was passed upon.

In Smith a. Bull (17 Wend., 322), the action was for assault and battery, committed in Pennsylvania; but the right to maintain such an action in this State was conceded by the counsel for the plaintiff in error, and taken for granted by Mr. Justice Cowen, by whom the opinion of the court was delivered. The question considered and passed upon by the court was, whether the statute, which declared that actions for injury to the person should be tried in the county where the cause of action arose, applied to the Court of Common Pleas, where this action was brought, or was limited to the Supreme Court. If this case is to be considered as a precedent, and binding as an authority upon the point not taken nor inquired into, though involved, then it would be controlling upon the motion. But I do not think that it is. If a point is essential to the decision rendered, it will be presumed that it was duly considered, and that all that could be urged for or against it was presented to the court; but if it appears from the report of the case that it was not taken or inquired into at all, there is no ground for this presumption, and the authority of the case is proportionately weakened.

The learned Dr. Lieber, in his work on Legal Hermeneutics, defines a precedent in law to be a decision arrived at by a competent tribunal after a patient inquiry into all points bearing upon the subject decided; and certainly this case does not come up to such a definition: and he further remarks—“ If we are convinced, after patient inquiry, which includes a thorough knowledge of the subject-matter, that we ought in justice to deviate from the former decision, we do wrong to perpetuate it;" that "the most eminent jurists, such as Lord Mansfield, have acted upon this principle, and overruled what was wrong, though with great caution."

After two days spent in the argument of this question, by most able counsel, involving the examination of every authority bearing upon the question that diligence or acuteness could suggest, and giving to it such further research as the limited time afforded me would permit, I feel that I come within this learned civilian's requisition, and may assume the responsibility of refusing to adhere to, or be governed by, the authority of a case

Ford a. Sampson.

where the point I am now required to pass upon was taken for granted without any examination, either upon principle or authority. Having come to this conclusion, it becomes unneces sary to examine the other point discussed upon the motion. A nonsuit must be entered.

FORD a. SAMPSON.

Supreme Court, Second District; General Term, May, 1859. ACTION FOR LANDS.-PLEADING.

In an action to recover possession of real property, an answer denying that defendant is in possession, or that he unlawfully withholds possession, does not raise the question of adverse possession, or authorize a recovery on that ground.

If the defendant seeks to prevail on the ground of an adverse possession, or to defeat the plaintiff's title on the ground that the conveyance under which he claims was made pending an adverse possession, he should in his answer set up title in himself, or out of the plaintiff.

Motion to turn a verdict for defendant into a verdict for plaintiff.

This action was brought by the plaintiff, who owned and occupied a lot of ground in Brooklyn, to recover from the defendant, who owned and occupied the adjoining lot, a gore or strip which the plaintiff claimed to belong to him, but which, by reason of the division fence being deflected from the true boundary, as plaintiff alleged, was in possession of the defendant.

The complaint alleged seizin and right of possession in the plaintiff to the lot described, including the gore in question, and that the defendant, at the time of the commencement of the action, was in possession of a portion of the lot which he unlawfully withheld from plaintiff, although possession had been by him demanded.

The defendant, in his answer, denied that he was in possession of a portion of the premises as bounded and described in the complaint; and denied also any demand of possession, or un

Ford a. Sampson.

lawful withholding; but set up no denial of the plaintiff's seizin or right of possession.

Further facts are stated in the opinion of the court.

On the trial of the cause the judge directed the jury to find a verdict for the defendant, with leave to the plaintiff to apply to the general term to turn the same into a verdict for the plaintiff for a strip of ground on the southerly side of the plaintiff's lot, four inches in width at the rear of the lot, and twenty-two feet six inches in length.

The plaintiff now moved at general term to turn the verdict for the defendant into a verdict for the plaintiff.

Gordon L. Ford, plaintiff in person.-I. The only issue made by the pleadings is, who is now in possession-plaintiff or defendant? And if the facts show the defendant to be, then, if he neither alleges nor shows adverse possession or claim of title to the ground claimed by the plaintiff, nor disputes the plaintiff's title or right to the possession, his possession "must be deemed to have been under and in subordination to the legal title" of the plaintiff. (2 Rev. Stats., 4th ed., 495, § 81; Code, 81.) The possession of a person entering on lands without pretence of title, will be deemed the possession of the true owner. No adverse possession or claim of title is shown by the defendant at the time plaintiff took title in 1856; and mere possession in another does not void a conveyance made by the real owner. To avoid a conveyance, it must be a possession under a claim of title adverse to the grantor (2 Rev. Stats., 149, § 160), and the possession will be presumed in the legal owner; but an adverse possession will not be presumed. It must always be clearly proved by the person claiming under such possession. And to constitute adverse possession, there must in all cases be claim of title. (Code, § 81.)

Where the title under which the plaintiff claims is clearly good, the court should be astute in finding grounds to give him a verdict, and ought not to compel the parties plaintiff to resort to a new suit, where no legal defence can exist. (SPENCER, J., 2 Cai., 183.) Defendant would not have been allowed, under his answer, to have proved either adverse possession or claim of title, for he alleges neither. As the pretended claim of the de