June v. Conant

in an action of trespass on the freehold, brought before a justice of the peace, the writ must be made returnable in the town where one of the parties resides, if both parties are citizens of this State; and the writ will abate, if made returnable in the town where the land lies, if neither of the parties resides in that town. In this respect section 16 of chapter 28 of the Revised Statutes, respecting process, does not control section 14 of chapter 26, which specifies where writs, in actions before a justice of the peace, shall be made returnable.

Trespass quare clausum fregit. The premises, upon which the injury was committed, were described in the declaration as situated in the town of Leicester, in the county of Addison, and the writ was made returnable in said Leicester, before a justice of the peace of the County of Addison. The plaintiffs and defendant were described in the writ as residents of the town of Brandon, in the county of Rutland. The action came to the county court by appeal; and the defendant pleaded,- — as he had pleaded on the trial before the magistrate,— that the justice of the peace, before whom the writ was made returnable, and who tried the suit, had not jurisdiction of the same, for the reason that all the parties to the suit were residents of Brandon, in Rutland County. The plaintiffs replied that the trespasses complained of were committed upon their close, situated in Leicester, in the county of Addison, and not elsewhere. To this replication the defendant demurred. The county court held that the replication was insufficient, and that the plea was sufficient, and rendered judgment for the defendant, for his costs. Exceptions by plaintiff. The Revised Statutes relative to justices of the peace, chap. 26, sect. 14, must determine the question raised in this case. The action of trespass on the freehold is made local, only when brought before the Supreme or county court. Rev. St., c. 28, §11. This is a statute regulation. Hunt et ux. v. Pownal, 9 Vt. 417. 1. The fourteenth section of the justice act, Rev. St. 171, insisted on by the defendant, is expressly, and by its terms, confined to those cases, where there is no other provision of law inconsistent with it. That section, therefore, leaves the question open, to be controlled by any general principal of law applicable to the subject. The eleventh section of chapter 28 of the Revised Statutes, it is believed, establishes the rule applicable to this case. 2. If the statute is silent upon the subject, then we insist that the action, being local at common law, must be brought in the county where the land lies. 3 Bl. Com. 294. Lienoio v‘. Ellis, 6 Mass. 331.