The opinion of the court was delivered by
Redfield Ch. J.This is an action of account between tenants in common of land, commenced before a justice of the peace, and brought into the county court by appeal, and then dismissed, for want of jurisdiction in the justice. The only question made is, whether the title of land is concerned in the action. It is true, that in form there is no general issue in this action. But the defendant may plead in bar, that he was never bailiff and receiver of the plaintiff, in the manner alleged in his declaration, and this puts the plaintiff upon the proof of his whole declaration. In that case the very first step in the proof is, to show the title out of which the relation grows, and from which results the obligation to account. Under our statute it is not necessary to allege, or prove, any contract between the parties. The action goes mainly, and merely, upon the title. And this denial of being bailiff and receiver, is the most common form of pleading, if the obligation to account is contested. And if the action is contested the title must be shown, if it is denied. The title is then as necessarily, and as directly concerned, in this action, as in an action of covenant, on the covenants in a deed of lands. There is in that action no general issue, as applicable to the covenants, the general issue being non est factum, and this only putting the party, upon proof of his deed, which does not involve any inquiry, into the title *494of land. But inasmuch, as the title of land is involved, in the trial of the action, on its general merits, it has been held, that a justice, has no jurisdiction of the action. Hastings v. Webber, 2 Vt. 407. We can entertain no doubt the title of land was concerned in this action, and that the justice consequently had no jurisdiction. This objection need not necessarily be moved at the first term. It is a defect which may be taken at any time, during the pendency of the action, and ipuld probably render any judgment, which should have been rendered in favor of the action, void, if the defect appeared, as it must, upon the face of the proceedings.
Judgment affirmed.