#### Alvah Kelley *versus*Oliver Taylor.

In an action of trespass brought before a justice of the peace, the filing a plea of tit»e to real estate takes away his jurisdiction of the case ; and it cannot be restored by pleading over and joining an issue not involving the question of title.

Where in an action of trespass for taking and carrying away the plaintiff’s cow, the defendant pleaded that he was the owner of a close, and that the cow broke into the close and that he thereupon impounded her, and the plaintiff replied that the defendant injured the cow, and issue was taken on the injury, and after a trial upon that issue the action was carried by appeal to the Common Pleas, and there an amendment was allowed putting in issue the title to the elope, it was *held,*that the allowance of the amendment was erroneous.

Trespass *de bonis asportatis*for taking the plaintiff’s cow, commenced before a justice of the peace The defendant filed before the justice a special plea, wherein he alleged that he was, on the day of the supposed trespass, lawfully possessed of a certain close, and that the cow broke into it and was doing damage there, and that for that - cause he took the cow and impounded her. The plaintiff replied, that the defendant abused the cow thus impounded. Upon this replication the *219defendant took issue and went to trial before the justice. The case was carried up to the Court of Common Pleas by appeal from the justice’s judgment upon the foregoing pleadings. At that court the plaintiff obtained leave to amend ; and thereupon he withdrew the replication filed before the justice, and replied *de suá injuria absque tali*causa, generally, tendering an issue to the country, which was joined by the defendant; and a verdict was rendered for the plaintiff. The defendant thereupon moved that judgment be arrested, upon the ground that the justice had no jurisdiction in the case after the special plea was filed, but ought to have ordered the defendant to recognise to enter the action in the Court of Common Pleas, according to *St.*1783, *c.*42. This motion was disallowed by the Court of Common Pleas, and the defendant excepted to the decision.

*Buttrick,*in support of the exceptions, contended,

1. that the justice had no longer any jurisdiction, after the filing of the special plea. He could not retain the case until the pleadings should be closed, by which it should be seen whether the title would be put in issue or not. It is not the character of the issue, but of the plea, that determines the question of jurisdiction. If the justice ceased to have jurisdiction, an *appeal*from his judgment could not give jurisdiction to the Common Pleas. *Campbell*v. Howard, 5 Mass. R. 376 ; *Dewhurst*v. Coulthard, 3 Dallas, 409 ; *Wood*v. Prescott, 2 Mass. R. 174 ; *St.*1783, *c.*42, § 2; *Spear v.*Bicknell, 5 Mass. R. 129 ; *Blood*v. Kemp, 4 Pick. 169.

2. Supposing, that although the title was pleaded specially, yet that as it was not in issue, the justice had jurisdiction, still the defendant maintains that the Court of Common Pleas had no authority to grant the amendment. It was sitting as an appellate court, and as such its peculiar province was to revise and correct the proceedings below. It could render no judgment which the justice could not. Now the action, as it came up, presented the question of a mere personal tort, but by an issue formed in the Common Pleas upon leave to amend, a title to real estate was tried by that court, exercising justice jurisdiction. As an appellate court it could not try a title to real estate. Its jurisdiction over that subject is original, whether *220the action be commenced there, or be carried there by a plea t’t'*e ^ec* before a justice of the peace. In effect, the in the Common Pleas changed a personal action into a real action ; but the court could not acquire jurisdiction in this way. The plea gave the defendant a right to try the title in the Supreme Court, but the case having gone into the Common Pleas by appeal, there could be no further appeal, and thus, by the amendment, the defendant is deprived of his right to a trial of the title in the Supreme Court. *Marbury*v. *Madison,*1 Cranch, 174 ; *Strong*v. *Smith, 2*Caines’s R. 28.

*Hoar*and *Tufts,*for the plaintiff.

The design of the legislature was *to*deny to a justice of the peace the power of trying a title to real estate. The title must be in question, as well as pleaded. If title is pleaded and not denied, but "s rendered of no consequence by pleading over, there seems to be no good reason why the justice should not try the cause.

When the plaintiff put in his replication to the plea of title, the defendant might have objected to its being received, but he did not; on the contrary, he took issue upon it and after a trial, he appealed from the judgment of the justice and entered the action in the Common Pleas. This was a waiver of his right to bring the case up on the plea, and of his objection to the jurisdiction of the justice and of the Common Pleas.

*Buttrick,*in reply,

to the point that consent could not give jurisdiction, cited *Green*v. *Rutherforth,*1 Ves. Sen. 471 ; 12 Co. 78 ; *Carroll*v. *Richardson,*9 Mass. R. 329 ; *Capron*v. *Van Noorden, 2*Cranch, 126 ; *Low*v. *Rice,*8 Johns. R 319 ; *Clayton*v. *Per Dun,*13 Johns. R. 218.

*Per Curiam.*

The question is, first, whether the plea of soil and freehold did not take away the jurisdiction of the justice of the peace ; and if so, then inasmuch as the party chose to put in issue the abuse of the cow, whether this did not restore the jurisdiction. We are of opinion that filing the plea took it away, and that it could not be thus restored. For suppose a replication to such a plea, and a rejoinder, surrejoinder, &c., the case might still go back to be decided or the plea

*221The next question relates to the amendment. We think it ought not to have been allowed. It changed the character of the cause. The action, as it went up to the Common Pleas, on the appeal from the justice of the peace, presented the issue of an injury to the plaintiff’s cow, but the amendment put in issue the title to real estate. Now, though if the action had been commenced in the Court of Common Pleas, the amendment would have been allowable, yet acting as an appellate court, it could not try any issue which might not have been tried before the justice. If the judgment of the justice had been on the same question as that of the Common Pleas, it would have shown that he had no jurisdiction. Further, where the action is,carried up, pursuant to the statute, upon a plea of title to real estate, the parties have a right to appeal from the judgment of the Common Pleas to the Supreme Court; but the effect of sustaining the amendment would be, to withdraw the action from the justice by appeal, and have a trial on the question of title in the Common Pleas, and then no appeal to the Supreme Court would be allowable.

*Exceptions sustained.*