The case presents several questions, which it is unnecessary to decide, as the only one considered by the court, is, whether the cause was appealable, or within the jurisdiction of the superior court.
*61By statute it is provided, that “ in all actions brought before any justice of the peace, demanding not more than seven dollars damages, charging the defendant with an injury done to land, in which the defendant shall justify the same by a special plea, stating or alleging a right of way, the party who shall be aggrieved by the judgment of such justice of the peace, shall be allowed an appeal to the next county court in the same county, on giving bond, with sufficient surety, to prosecute his appeal to effect: and the party who shall be aggrieved, by the judgment of such county court, shall be allowed an appeal to the next superior court in the same county, on giving bond, with sufficient surety, to prosecute his appeal to effect.” iStat. 52. tit. 2. s. 64. In the case before us, it has not been claimed, that the judgment of justice Dunham on the general issue, was appealable. As it is silent respecting the defendant’s right of way, and the plaintiff demanded no more than seven dollars damages, the finding and judgment of the justice on this issue, were final. Stat. 41. tit. 2. s. 23. The defendant has, indeed, by his plea, laid a foundation for the removal of his cause to a higher tribunal, by alleging a right of way ; but it was entirely overlooked, by the justice, and the cause passed directly from him to the superior court, without any intermediate judicial act. The cause was, therefore, coram non judice in the superior court; and all the proceedings there were utterly void ; and the superior court must be so advised.
Daggett, Ch. J. and Bissell, J. were of the same opinion. Williams, J. gave no opinion. Church, J. was absent.Cause to be dismissed as coram non judice.