#### Charles P. Sumner, Plaintiff in Error, *versus*Peter Finegan.

Actions for injuries done to the realty, where the damage does not exceed twenty dollars, may be brought before a justice of the peace for the county where the wrong-doer lives, or may be found, although the estate to which tile injury is done does not lie in such county.

The original action.was trespass on the case, against the said *Finegan,*for suffering the spouts of a house, owned by him in *Boston,*in the county of *Suffolk,*to be so leaky and out of repair, from April, 1810, to June, 1816, that the rain-water, from one declivity of the roof, during that space of * time, fell upon an adjoining curtilage possessed by the said *Sumner.*The action was originally commenced before a justice of the peace for this county, within which the defendant lived.

*258The defendant pleaded before the justice that he, the said justice, ought not to take cognizance of the action, because the cause thereof (if any) accrued to him in *Boston,*in the county of *Suffolk,*and that jurisdiction thereof appertained to a justice of the peace for the county of *Suffolk,*or to the Town Court of the town of *Boston,*and not to any justice of the peace, or court, except in the county of *Suffolk.*

Upon a demurrer to this plea, it was adjudged insufficient, and a *respondeos ouster*was awarded by the justice. The defendant then pleaded the general issue of not guilty ; which, upon trial, being found against him, and judgment thereupon being rendered for the plaintiff, for his damages, the defendant appealed to the Circuit Court of Common Pleas for this county, who adjudged the defendant’s plea to the jurisdiction of the justice sufficient, and awarded the defendant his costs.

The plaintiff brings this writ of error, to reverse the said judgment of the Common Pleas; and he assigns the general error, to which the defendant pleads *in nullo est erratum.*

*S. D. Parker,*

being called on by the Court to support the plea to the jurisdiction of the justice, argued, 1st., that the action was local at the common law; 2. That no provisions of our statutes have made it transitory; 3. That the Common Pleas had authority to award costs to the defendant.

To the first point he cited 1 *Chitty on Pleading,*271, with the authorities there referred to. — 4 *D. & E.*503, *Doulson*vs. *Matthews & Al.*— *Com. Dig.*title *Action. N.*4, 5. — 2 *W. Black Rep.*1070.

On the second point, he observed that, from the earliest times of the colonial government, the distinction between * local and transitory actions had been attended to. Thus, in 1642, transitory actions were permitted to be brought and tried where either of the parties lived ; and “ all other actions, within that jurisdiction where the cause of action doth arise.” (1) The same provision was reenacted under the provincial charter; (2) and again, in 9 *Will.*3, (3) the distinction is carefully, maintained. And by the statute of the commonwealth, of 1783, c. 42, the like provision is made. That this is a local action appears from this, that, unless the defendant be the owner of the house, the action cannot be maintained.

If trespass *quare clausum fregit*be brought before a justice of the peace, not of the county where the land lies, and the defendant plead title, the action is to be carried to the Common Pleas of the *259same county. Yet that court can never try it. The legislature must have intended to confine local actions to the county. If one is sued in such action in a foreign county, he has no way of avoiding it but by pleading to the jurisdiction of the court or justice; and such plea may fairly be considered as intended to bring the title into question. (4)

To the third point, that the Common Pleas were authorized to give the defendant his judgment for costs, *Parker*cited the case of *Thomas, Judge, &c.,*vs. *White,*(5) in which it was decided that, where the Court have jurisdiction of the subject, (as a probate bond in that case, and as a private nuisance in the case at bar,) and it is only by the plea of the defendant that the want of jurisdiction of the particular suit can be ascertained, there the defendant is entitled to his costs.

*The Plaintiff in error,*

a counsellor of this Court, *pro se*Whether the original action were local or transitory is not an inquiry necessary to the plaintiff. It is sufficient for him that it is a *civil*action, that the alleged damages do not exceed twenty dollars, and that the title to real estate is not in question. (6) Justices of the peace are not precluded from trying causes of a nature to furnish a * possible, but unimproved, opportunity for a dispute about the title to real estate. (7) By *Stat.*1797, c. 21, they are expressly authorized to try trespasses *quare clausum fregit,*which are local, (8) and naturally afford occasions for disputes respecting the title to real estate.

By *Stat.*1782, c. 11, the Court of Common Pleas have cognizance of *all civil actions,*for a certain amount of alleged damage, *arising within their county ;*but that court holds undisputed cognizance of transitory actions, the causes of which arise *dehors*the county within which they sit. The jurisdiction of a justice of the peace, by *Stat.*1807, c. 122, extends, with a single exception, to all civil actions not exceeding twenty dollars, and has no qualification respecting local actions which the words “ arising within their counties,” seem to fix upon the Common Pleas, a court wherein questions of fact are tried by a jury, and a *venue*has not become quite obsolete. (9) Is a justice of the peace proceeds without a jury, there can be no reason why he should not hold cognizance of *260local as well as transitory actions, without regarding the county within which the causes of them may have arisen.

The statute of 1807, c. 122, ■§> 2, restrains the Common Pleas from sustaining, except on appeal, any action where the damage demanded is so small as in the original action now under consideration ; and there must be a denial of justice, unless justices of the peace, within their several counties, have cognizance of all civil actions below the jurisdiction of the Common Pleas.

The law consults the convenience of a defendant, in making him answer for a small demand in the county wherein he dwells, rather than in that wherein his leased houses and lands may happen to lie.

Our practice does not embrace the *English*processes, which, following each other in hard succession, lead to the outlawry of a defendant; and without these, how could *Finegan*have been brought to either of those courts in *Suffolk*before which alone his plea states him to be amenable ? * Their writs

run not beyond the limits of the county ; he will not quit his own county for the sake of being arrested elsewhere; and service on either or all of his tenants in *Suffolk*would be of no legal efficacy on him. More successful than Captain *Gambler*and Admiral *Palliser,*(10) of the *British navy,*he would triumph in the imbecility and improvidence of the law.

The defendant’s plea seems founded upon the idea that our justice’s court is what, in *England,*would be called an inferior jurisdiction. But it has no exact prototype in that country, although it resembles, in some measure, that of a county palatine ; regarding the place where a defendant is to be found rather than that in which he may have contracted a debt, or been guilty of a tort. Its writs, like those of our highest courts, are “ in the name of the commonwealth.” Ever since the year 1692, when our judiciary system was first established under the provincial charter, the court of a justice of the peace has served here in the stead of those many tribunals, of limited jurisdiction, by means of which, in no inconsiderable degree, the *English*boast that justice is distributed at every man’s door in the most cheap, expeditious, and convenient manner;

The Court of Common Pleas have virtually decided that an action of this sort cannot be tried, except in the county where the cause of it arose. They thus disclaim jurisdiction for themselves, as well as for the justice whose judgment they have disaffirmed; and yet they have adjudged costs to the defendant. This seems not to accord with the practice of this Court. (11)

(1)

*Ant. Chart.*45.

(2)

*Ibid.*217

(3)

*Ibid.*299

(4)

 See 5 *Mass. Rep.*95, *Briggs*vs. *Nantucket Bank.*

(5)

12 *Mass. Rep.*370. — See, also, 2 *Mass. Rep.*216, 512.

(6)

*Stat.*1807, c. 122, § 1.

(7)

2 *Mass. Rep.*174, *Wood*vs. *Prescott.*

(8)

 3 *Wood,*264.

(9)

5 *Mass. Rep.*96.

(10)

 Vide *Cowp.*180, 1, *Mostyn*vs. *Fabrigas.*

(11)

 See 2 *Miss. Rep.*217, 509. — 4 *Mass. Rep.*659.—5 *Mass. Rep.*264 —12 *Mass. Rep.*370.

*261Pabker, C. 3.,

delivered the opinion of the Court. By the

authorities cited by the counsel for the defendant in error, he seems to have maintained the position that, at common law, an action upon the case, for a nuisance done to real estate, is local; the general principle being that, where the subject-matter of the action is local, the action is so likewise. Thus, trespass for injury done to the real * estate, and perhaps actions on covenants which run with the land, are local, as laid down by *Chitty*in the place cited.

But the plaintiff in error contends that, however this may be at common law, by our statutes giving jurisdiction to justices of the peace, all actions, whether by nature local or transitory, if the demand does not exceed the jurisdiction of the justice, must be brought within the county where the defendant lives; because the precept from the justice does not run beyond the limits of the county in which he dwells ; and there would be a failure of justice, in all cases where the demand should be below twenty dollars, if the plaintiff was obliged to wait until the defendant should come within the county where the injury was done; which must be if the action cannot be brought in the county .where the defendant lives.

By the statute of 1797, c. 21, respecting the jurisdiction of justices of the peace, it is provided that they shall have full power and authority to try and determine all debts, trespasses *quare clausum fregit,*and other trespasses, not exceeding the value of thirteen dollars and one third; excepting actions wherein the title to real estate is in question, and shall be specially pleaded by the defendant. This act was intended to remove, and did remove, all doubt which had before existed respecting their jurisdiction.

The statute of 1807, c. 122, affirms the jurisdiction of justices upon the same subjects, extending the value of the subject-matter to twenty dollars ; and the Courts of Common Pleas are expressly ousted of jurisdiction of any actions in which the damages demanded do not exceed that sum. By the same act it is also provided that, in any action originally brought to the Court of Common Pleas, if no more than twenty dollars is recovered, the plaintiff shall recover one quarter part only of damages in costs.

It is likewise provided, in the general statute of 1783, c. 42, describing the power and duty of justices of the peace, that the summons, copias, or attachment, issuing from * justices of the peace, shall be directed to some officer within the same county ; so that all actions, brought before a justice of the peace, must necessarily be brought in the county where the defendant lives, or where he may be found by the officer to whom the precept is directed.

*262From all these provisions it seems necessarily to follow that, for all injuries done, whether to real estate or otherwise, if the damage do not exceed twenty dollars, the action may be brought in the county where the defendant lives; and that, in this respect, the common law is repealed. If it were not so, the plaintiff must commence his action at the Court of Common Pleas with a certainty of losing the costs of his process whenever the injury done him does not exceed twenty dollars; for the precept of the justice does not go beyond his county; — or he must wait for the chance of finding the defendant within the county within which the wrong was done; which might, in effect, deprive him of all remedy.

Upon these grounds, the judgment of the Common Pleas is reversed, and a new trial may be had, upon the general issue heretofore joined by the parties, at the bar of this Court.