
    * William Cleveland versus Jacob Welsh.
    A plea to a transitory action, alleging that neither of the parties lives within the county where the action is brought, is a plea in abatement to the writ, and must be filed before the jury is empannelled, pursuant to the statute of 1782, c. 11, § 6.
    The defendant was attached in this suit by the name of “ Jacob Welsh, of Shirley, in said county of Middlesex, gentleman; ” and the sheriff of this county made service of the writ by leaving a summons at his former dwelling in said Shirley. The plaintiff is named of Salem, in the county of Essex,
    
    At the return term of the Common Pleas, but not until after the jury was rnpannelied, the defendant offered to file the following plea, viz , —
    “ And the said Jacob Welsh comes and prays judgment if the Court here will take any further cognizance of this action, because he says that at the same time of suing out the plaintiff’s writ, and for a long time before, the said plaintiff was an inhabitant of Salem, in the county of Essex, as by the same writ is supposed; and that the said Jacob Welsh, during all the time aforesaid, was an inhabitant of Boston, in the county of Suffolk, and commorant there, and not an inhabitant of, or resident at, Shirley, in said county of Middlesex, as by the same writ is supposed ; and the cognizance of the same writ belongs exclusively to one of the courts in said county of Essex or Suffolk, and not to this Court. And all this the said Jacob Welsh is ready to verify. Wherefore he prays judgment that the same writ may abate, and he be allowed his costs, agreeable to the statute in such case made and provided.”
    The court below refused to admit the plea, it not being filed before the jury was empannelled. The defendant then filed a good plea to the action, and on demurrer to it with reservation obtained judgment. The plaintiff appealed ; and now the defendant moved the Court here that he may be allowed to file his plea in abatement at this term, and that the plaintiff' may be compelled to reply or demur to it, because the Common Pleas illegally refused to receive it.
    It was agreed that the plaintiff, at the time of suing out his writ, was an inhabitant of Salem, and the defendant an inhabitant and a municipal officer of Boston. The summons was left at Shirley, and the defendant did not receive it until the * opening of the Common Pleas; and he could not have [ * 592 ] arrived at the place of its sitting until after the jury was empannelled.
    In this state of the action, the questions submitted to the Court, as stated by the counsel for the defendant, were, 1. Whether this plea to the jurisdiction is a plea in abatement within the statute of 1782, c. 11, § 6. 2. If it is, whether, upon the verification of the above facts, the court below ought not to have admitted the plea to be filed, after the jury was empannelled.
    
      For the defendant, it was contended that a plea to the jurisdiction of the Court was not a plea in abatement of the writ, but had a different commencement and conclusion.  If the defendant was to bé deprived of this exception, unless his plea was filed before the empannelling of the jury, it would put it in the power of the plaintiff to destroy the locality of the action, and entirely defeat the object of the statute, by avoiding to give personal notice.
    
      
      
        Bac. Abr tit. Abatement.
    
    
      
      
         [Wood vs. Mann, 1 Sumn. 578. — Ed.]
    
   The opinion of the Court was delivered by

Parsons, C. J.

If the Court of Common Pleas did wrong, and refused to receive a regular plea in abatement, when filed seasona bly, we are satisfied that such plea ought to be received in this Court, notwithstanding the defendant has pleaded to the action ; for without further proceeding below, he could not have a judgment there entered, from which he might appeal, and at this Court have the orders and decisions of the court below revised and corrected. The question, therefore, is, whether the Common Pleas did or did not right in refusing to receive this plea.

By the statute of 1782, c. 11, the Common Pleas for any county-had jurisdiction of any civil action, of the value of forty shillings, arising or happening within their county, and triable by the common or statute law. Consequently it had cognizance of all transitory actions brought before it by writ sued out and returnable to that court; for such action necessarily arose within their county. And no power was given to the Court to change the venue to the county where the cause of action happened.

[ *593 ] *But, to prevent vexation to defendants, in being wantonly sued in remote counties, the 13th section of the statute of 1784, c. 28, provides that transitory actions, when the plaintiff lives within the state, shall be sued in the county where either he or the defendant lives. And if such action be sued in another county, the writ shall be abated, and the defendant allowed his double costs. This remedy was given to the defendant. He may consequently waive it; and he must be considered as waiving it, unless he seek it by plea in abatement to the writ. For the exception is not to the jurisdiction of the Court of Common Pleas, which has conusance of all transitory actions above the value prescribed in the statute, but is to the writ, as sued out and returned in a wrong county.

The plea in this case sufficiently brings the defendant within the said 13th section of the statute. But it is a plea in abatement to the writ; and by the 6th section of the first-cited statute, it is enacted that all pleas in abatement to the writ shall be made, signed and filed in the Common Pleas, before the jury is empannelled But this plea was not filed before the jury was empannelled; and the Common Pleas did right in rejecting it. It cannot, therefore, be received in this Court.

Ward for the plaintiff.

Dana and Heald for the defendant, 
      
       By the statute of 1783, c. 42, § 8, the Common Pleas have not original jurisdic* tian in any civil action, when the damage demanded does not exceed four j)oundi% except actions wherein the title to real estate may be concerned.
     