The opinion of the Court was drawn up by
Shepley J.It is provided by statute, that all civil actions wherein the debt or damage does not exceed twenty dollars, and the title of real estate is not in question, shall be heard and tried by any justice of the peace within his county, c. 76, <§> 8. And in the act regulating judicial process and proceedings, c. 59, § .9, it is declared, that all personal and transitory actions shall be brought in the county where one of the parties lives. .Enactments very similar had existed in Massachusetts, while her laws were in force here, and it had been decided there, in the case of Sumner v. Finnegan, 15 Mass. R. 280, that an action in its nature local might be brought before a justice, if no more than twenty dollars were claimed, in any county where the defendant resided.
In the case of Pitman v. Flint, 10 Pick. 504, it was decided, that the Court of Common Pleas had jurisdiction of an action thus commenced and carried into that Court by appeal. In both of those cases the defendant pleaded to the jurisdiction. No such plea appears in this case to have been put in, or any objection to have been made to the jurisdiction until the cause was on trial in the Common Pleas, when a written motion was made for a nonsuit on the ground, that the cause of action appeared by the writ to be local. Chitty states, that in local actions, if the venue be laid in the wrong county and the objection appear upon the record, the defendant may demur; and if it do not appear on record, may, under the -general issue, avail himself of it as the ground of non-suit. 1 Chitty Pl. 284. It appearing upon the record, and not being demurred to, the case is not within the rule as stated by Chitty ; and in such case it is cured by statute after verdict. 16 & 17 Car. 2, c. 8. But it is not necessary to inquire whether the objection was properly taken, because local actions may be brought before a justice of the peace in the county where the defendant resides.
Exceptions sustained, and new trial granted.