Read, J.
The error is assigned, upon the ground that the case fell within the jurisdiction of a justice of the peace, and the recovery not being one hundred dollars, it could not carry cost. ,We have decided at this term, in the case of Harrington v. Heath, that an action for nuisance upon land did not fall within the jurisdiction of a justice of the peace. Hence, the recovery being over five dollars, the case carries costs. We report this case, because one member of the. Court appearing to have his name attached to the proceedings in that case by his partner, as counsel, did not sit.
We here assert, that it is the unanimous opinion of the Court, that the case of Harrington v. Heath, decided at this term, is law.
Judgment affirmed.