This was an action of ejectment brought by the appellee against the appellant, and lately depending in the late Mero District Court. The Legislature by an Act passed in 1809 creating circuit *Page 409 courts, directed that all civil causes then depending in the superior courts should be transferred to the circuit courts, viz.: That each cause should be sent to that county where the first-named defendant resided. According to this rule the present case was sent to Bedford County. At the same session that the Act passed establishing circuit courts the county of Lincoln was erected, which includes the land in controversy.
At the time suit was commenced Lincoln formed a part of Bedford, and so remained until it was erected into a separate county.
During the same session an Act, supplemental to the Act establishing circuit courts, was passed, which provides that all causes where the title to land comes in question shall be tried in the county where the land lies. When this cause was tried in Bedford, the counsel for the appellant moved the Court to instruct the jury that if they believed the land lay in Lincoln they must find for him. The Court refused to give such instructions and the appellant excepted to the opinion.
The jury having found a verdict in favor of the appellee, the judgment of the Court was pronounced thereon concluding with a capiatur. This Court are of opinion that the Circuit Court acted correctly; because the cause was transferred to that court, which by the first Act was directed to take jurisdiction of it. The supplemental Act did not intend to make any change in this respect as to the causes then pending, but to make a provision for suits thereafter to be commenced. It was competent for the Legislature to point out any county they might choose where the suits should be tried. The clerk could send it to none other but the one to which he did send it.
It is also urged that the judgment of the Circuit Court is erroneous, it having concluded with a capiatur. Run. Ejt. 405. We conceive the conclusion *Page 410 of the judgment to be right, though it would have been as well to have concluded in misericordia.