
    Benjamin Pritchard versus Simeon Atkinson.
    A justice of the peace has no jurisdiction to try an action of covenant broken, founded on a covenant, that, land is conveyed free of incumbrances, when a public highway is assigned as a breach of the covenant.
    In such cases, therefore, the plaintiff is entitled to full costs, however small may be the amount of the damages assessed.
    This was an action of covenant broken, brought upon a deed purporting a conveyance from the def endant to the plaintiff of a tract of land. The covenant recited in the declaration Avas, that at the time of executing the deed the granted premises were free of all incumbrances. The breach of the covenant assigned was, that at the time, of executing the deed, the premises were incumbered with a public highway. The cause having been tried and a verdict returned for the plaintiff and damages assessed at $1, Atkinson, for the defendant, contended, that the plaintiff was not entitled to full costs.
    Webster, for the plaintiff.
   Richardson, C. J.

delivered the opinion of .the court.

The statute of June 30, 1825, sec. 8, provides, that in all actions, except actions of the ease for slanderous words, actions of assault and battery, for imprisonment and for malicious prosecution, and trespass, quare clausum fregit, commenced at the court of common pleas, if it shall appear to the justices of said court, or to the justices of the superior court in case of appeal, that the plaintiff, or plaintiffs, had no reasonable expectation of recovering more than six dollars damages in such suit, the justices of said court may limit the plaintiff, or plaintiffs, in their costs-to such sum as they may think just and reasonable, all circumstances duly considered.” The question raised in this case depends upon the construction to be given to this provision in the statute.

In Massachusetts, a plaintiff who commences an action in the court of commom pleas, is entitled to full costs in all actions wherein the title to real estate may be concerned. Mass. Statute of 1807, cap. 122; 16 Mass. Rep. 448, Crocker v. Black; 7 ditto, 476, Dummer v. Foster; 2 Mass. Rep. 462, note.

Our statute of June 30, 1825, section 8, only declares that in all actions of trespass, quare clausum fregit, where the title of real estate is not in question, if the damages found or assesed by the jury do not amount to six dollars, the court may, if they think proper, allow only such sum in costs as they shall think proper, not exceeding the damages assessed by the jury.” No provision is made for full costs in any form of action where the damages have been assessed at a less sum than six dollars, and the title to real estate has been drawn in question, except in the action of trespass, quart clausum fregit. But it is clear, that in actions of covenant broken, in which the title to real estate is necessarily drawn in question, a plaintiff is entitled to full costs, however small may be the amount of damages assessed. Because the object of the provisions in the statute, which we are now considering, in limiting the costs, was to confine causes involving trivial damages to the jurisdiction of justices of the peace in the first instance. It is therefore apparent, that causes, where justices of the peace have no jurisdiction, cannot be embraced by those provisions.

The statute of June 22, 1810, 1 N. H. Laws, 65, enacts, “ that every justice of the peace within his county, be, &c. empowered to hear, try, and determine all pleas and actions, except such wherein the title of real estate may be drawn in question, when the sum demanded in damages does not exceed 013,33.” And it is obvious that a justice of the peace has no jurisdiction of any action under this statute, the decision of which necessarily involves a question of title to real estate. In an action of covenant broken, where an easement for the public is assigned as a breach of a covenant against incumbrances, a question of title to real estate is necessarily involved. Such an easement is a real franchise, and it seems to us very clear that a justice of the peace has no jurisdiction in such a case. 5 Mass. Rep. 129; 2 Johns. 185; 1 Cowen, 568, Exparte Coburn; 1 Johns. 146, Heaton v. Ferris; 2 Mass. Rep. 462, note; 3 N. H. Rep. 403. It has always been supposed that a writ of entry could not be brought before a justice of the peace for want of jurisdiction, and this case is believed to stand upon the same ground.

We are therefore of opinion, that as this cause could not have been brought before a justice of the peace, it is not within the intent of the provisions limiting costs, and that the plaintiff is entitled to full costs.  