CIVIL CASES.

CHAPTER I.

OF THE JURISDICTION OF TRIAL JUSTICES.

(a) The term "jurisdiction," in its etymological sense, signifies a declaration of law. Practically, however, when a court is said to have jurisdiction of a personal action, it is meant, in general terms, that the court has authority not only to declare the law concerning the subject-matter in controversy, but also to enforce its judgment between the parties. So that the essentials of jurisdiction are power over the parties and the subject-matter of difference between them.1

(b) Jurisdiction being derived from the statute, it cannot be conferred upon a trial justice by consent of parties, except in a case when the justice is disqualified by reason of relationship to one of the parties, when the disqualification may be waived by the "written consent of the parties." 3

(c) No presumption is to be made in favor of the jurisdiction of a justice. Nor can it be enlarged by implication.

1. Every trial justice may hold a court in his county, as provided in chapter eighty-three of the revised statutes, and have original and exclusive jurisdiction of all civil actions, including prosecutions for penalties in which his town is interested, when the debt or damages demanded do not exceed twenty dollars, except those in which the title to real estate, according to the pleadings or brief statement filed in the case by either party, is in question; and except that in those towns in which a municipal or police court is established, his jurisdiction shall be restricted to those cases in which jurisdiction has been heretofore given to justices of the peace, in the act establishing such court, and to cases wherein jurisdiction has been or may be given to trial justices in like manner.5

1 Merrill v. Curtis, 57 Me. 152.-2 Call v. Mitchell, 39 Me. 465.-3 R. S. c. 1, § 4, rule XXII. Dodge v. Kellock, 13 Me. 136; Hersom's Case, 39 Me. 476; Lane V. Crosby, 42 Me. 327; State v. Hall, 49 Me. 412.-5 R. S. c. 83, § 3.

(d) Whether an action should be brought before a trial justice is ordinarily to be determined by the amount claimed in fact to be due. So a justice may render judgment against a trustee for a sum within his jurisdiction, though the trustee's indebtedness to the principal defendant exceed the justice's jurisdiction."

2. When it appears by the pleadings or brief statement in the case that the title to real estate is in question, it shall be removed on the request of either party, to the supreme judicial court; and such party shall recognize to the other party in a reasonable sum, with sufficient sureties, to enter the case at the next term of said court; and if he does not so recognize, the justice shall hear and decide the case, as if such request had not been made.

3. Any trial justice may hold a court at his dwellinghouse, office, or other suitable place, and the writ shall be made returnable accordingly. He may adjourn his court by proclamation, from time to time, as justice requires.9

4. Every trial justice and justice of the peace may issue subpoenas for witnesses in civil actions pending before any court, or persons authorized to examine witnesses."

5. Every trial justice may issue writs of scire-facias against executors or administrators, upon a suggestion of waste, after judgment against them; against bail in civil actions, and indorsers of writs; and enter judgment and issue execution, as any court might do in like cases."

6. If a trial justice dies after giving judgment in a cause and before it is satisfied, any other justice of the county may, on complaint of the creditor, issue a summons to the person in whose possession the record of such judgment is, directing him to produce and deliver it to him; and if he contemptuously refuses to produce it, or to be examined respecting it on oath, the justice may commit him to prison, as punishment for the contempt, to be detained until he submits to such examination and produces the record; and when the record is so delivered to him, he shall transcribe it upon his own book of records, and return the original to the person who produced it.12

12

6 Lawrence v. Ford, 44 Me. 427; Lewin v. Warren, 49 Me. 326; Hewey v. Bangs, 53 Me. 514; Thompson v. Gibson, 2 Overt. 235.- Dogget v. St. L. Mar. & F. Ins. Co., 19 Wis. 201.-8 R. S. c. 83, § 4.-9 R. S. c. 83, § 14.-10 R. S. c. 83, § 13.-11 R. S. c. 83, § 22.-12 R. S. c. 83, § 24.

7. No justice shall be of counsel for or give advice to either party, in a suit before him, or be subsequently employed as counsel or attorney in any case tried before him, nor hear or determine any civil action commenced by himself; and every action so commenced shall abate.13

(e) This statute does not prevent a justice of the peace and of the quorum who sat in a disclosure of a poor debtor from being counsel for him in an action upon the debtor's bond to disclose.

8. Trial justices are declared to be, ex officio, justices of the peace and of the quorum, and all of their official acts, attested by them in either capacity, except those pertaining to the exclusive jurisdiction of trial justices, are of equal effect.15

(f) Every court has power to judge of its own jurisdiction; and where a party pleads to the jurisdiction, the decision of an inferior court in favor of its jurisdiction is as conclusive on the parties as a judgment in a matter confessedly within its jurisdiction. 16

9. In all actions commenced in any court proper to try them, jurisdiction hall be sustained, if goods, estate, effects, or credits of any defendant are found within this State and attached on the original writ; and service shall be made as provided in the nineteenth section of the eighty-first chapter, Revised Statutes.17

(g) But this jurisdiction has reference only to the property and not to the person.17a

(h) The question of jurisdiction, however, must be settled by the facts existing at the time of the entry of the action; and it is a misprision to take an order of notice where the court has no jurisdiction either of the person or by attachment of the property of any defendant.18

13 R. S. c. 83, § 29.-14 Cummings v. York, 54 Me. 386.-15 R. S. c. 83, § 80.16 State v. Scott, i Bailey, 294.-17 R. S. c. 81, § 12.-174 Lovejoy v. Albee, 33 Me 416.-18 Cassity v. Cota, 54 Me. 380.

CHAPTER II.

ACTIONS, COMMENCEMENT OF.

(a) The making of a writ is not to be regarded, under all circumstances, as the commencement of an action; for it may be made simply as a matter of precaution, to be used or not as circumstances may thereafter dictate.1 But it is presumptive evidence of an intention to have it served, which presumption may be rebutted.2 The making of a writ, however, with a bona fide intention of having it served, is the commencement of a suit, and the actual time of the making of a writ is the time of the commencement of the suit, although the date of the writ is presumptive evidence of the time.3

1. All actions between parties residing in the same county, returnable before any trial justice, shall be commenced before some such disinterested justice, residing or holding his court in the town where one of the parties, or his attorney, or person summoned as trustee in such action, resides; and if there is no such justice residing or holding his court therein, then before some such justice, if any, in an adjoining town, otherwise before any such justice in the county.*

2. When the parties reside in different counties, such actions shall be commenced before any disinterested trial justice residing in the county where any defendant resides; but all trustee actions, returnable before such justice, shall be commenced within the county where some trustee therein named resides.5

(b) Hence, an action on the case for diverting the water from the plaintiff's mill situated in one county, may be brought before a disinterested trial justice in any county in which the defendant resides."

3. Any action against two or more defendants residing in different counties, to be tried before a trial justice or municipal or police court, may be brought in the county where either resides; but if there be but one defendant, such action shall be commenced in the county where he resides."

1 Haskell v. Brewer, 11 Me. 258; Swift v. Crocker, 21 Pick. 241.-2 Haskell v. Brewer, 11 Me. 258; Gardner v. Webber, 17 Pick. 407.3 Johnson v. Farwell, 7 Greenl. 370.--4 R. S. c. 83, § 7.-5 R. S. c. 83, § 8.- Morton v. Chase, 15 Me. 188.R. S. c. 81, § 15.

4. Local and transitory actions shall be commenced and tried as follows: When both parties are counties, in any county adjoining either; when a county is plaintiff, if the defendant lives therein, in an adjoining county; if he does not live therein, in the county in which he does live; when a county is defendant, if the plaintiff lives therein, in that county or in any adjoining county; if he does not live therein, in that county or in that in which he does live; when a corporation is one party and a county the other, in any adjoining county; when both parties are towns, parishes, or school districts, in the county in which either is situated; when one party is a town, parish, or school district, and the other some corporation or natural person, in the county in which either of the parties is situated or lives; but all actions against towns, for damages by reason of defects in highways, shall be brought and tried in the county in which the town is situated. All other corporations may sue and be sued in the county in which they have any established place of business, or in that in which the plaintiff or defendant, being a natural person, lives.8

5. When a forfeiture is recoverable in a civil action, it shall be brought in the county in which the offense was committed, unless a different provision is made in the statute imposing it; and if on trial it does not appear that it was committed in the county where the action was brought, the verdict shall be in favor of the defend

ant.9

(c) When the person is not within the jurisdiction of a court and his property is within its jurisdiction, a judgment will be effectual only as a judgment in rem acting upon the property; 10 and should a court render a judgment without obtaining jurisdiction of the person, it would be void, and no statute should receive a construction sustaining a different doctrine unless absolutely necessary.10

R. S. c. 81, § 13.-9 R. S. c. 81, § 14.-10 Lovejoy v. Albee, 33 Me. 416.