which A had cut the timber; and upon this supposition brought an action of debt or assumpsit against B, as for money had and received, to recover back the $25; and the justice being of opinion that the land was not B's, gave judgment in favor of A for $25. On certiorari, the supreme court of New-Jersey reversed this judgment, notwithstanding B did not plead title before the justice; for they said A could not support his action without disproving B's title, and it was indifferent how the title came in question; for the act of assembly was express, that he should not hold plea of any action in which the title to land should, in any manner of ways, come in question. Nor can a justice try title, although the parties voluntarily join issue upon it, and a jury give their verdict, upon which he enters judgment. For where an action of trespass on the case was brought by A against B, for a nuisance, in overflowing part of A's meadow, by raising a mill dam, and B did not deny the land was drowned, but his defence to the jury was that the land drowned was his own meadow, and not A's; however judgment going against B, he brought a certiorari, and the court reversed the judgment, holding that the justice and jury could not try a question of title, even with the consent of the parties. Under this head, if the mere possession of land is the only question between the parties, it may be tried. As if in the case of the fishery first mentioned; John the plaintiff, claimed no title, but founded his action upon a priority of possession, and William, instead of claiming title, merely denied John's prior possession. This the justice may safely try; and so in similar cases."(u) Another case may be aded to those above supposed by Mr. Griffith, which would go still farther to illustrate his doctrine. In an action of trover for boards, the defendant offers to shew under a plea of not guilty, (as he has a right to do) that the logs out of which the boards were sawed, were wrongfully cut upon his land by the plaintiff, who drew them to his mill, and sawed them into boards, from whence the defendant took and carried them away, claiming them as his own. bring the title in question, and oust the justice of his jurisdiction. This would In these cases I conceive it to be the duty of the justice to wait until he sees by the proof that there is a real question of title lawfully and necessarily before him; and then to dismiss the cause; not depending for this purpose on the mere unadmitted statement of one of the parties; but upon proof or admissions made in the course of the hearing, or upon (u) Griffith's Treatise, 18, 19 and 20. T the actual state of the pleadings. But a plea that the defendant entered into his own close, adjoining the close of the plaintiff, and there committed the trespass, would not of itself oust the justice of his jurisdiction; though I should imagine it would be otherwise, if the plaintiff claim title to the close set up in the plea of the defendant, and deny that it was the close of the defendant. (v) A plea of a right of way, to a declaration for entering plaintiff's close, breaking down his fence and travelling over the close, puts in question the title to lands and deprives a justice of jurisdiction; (w) but such a plea should not be received unless the other requisitions of the statute as to pleading title are complied with.(x) A justice has not jurisdiction in an action to recover money paid upon a contract for the sale of land, afterwards rescinded because of a defect of title in the party who covenants to convey ;(y) neither has he jurisdiction in an action of covenant upon a warranty in a deed of land, where the breach assigned is, that the defendant had not good title when he made the deed. (z) A plea of title put in, and a compliance with the requirements of the statute in such cases, does not necessarily oust the justice of jurisdiction; but it is his duty to decide whether such plea, when put in, is appropriate to the action prosecuted before him: thus such a plea would be improper in an action of debt for a penalty for not removing an obstruction in a highway. (a) The rule denying to a justice jurisdiction of cases where title to land comes in question, is equally strict with respect to the plaintiff as the defendant, and it is declared by statute that if it shall appear on the trial from the plaintiff's own showing, that the title to lands is in question, which title shall be disputed by the defendant, the justice shall dismiss the cause, and the plaintiff shall pay the costs.(b) costs. (b) Thus if an action be brought for a trespass on lands of which the plaintiff has no actual possession, as, for instance, wild lands, he will be compelled, in order to maintain the action, to prove a title to the lands, and thus make out a constructive possession; but this proof of title, a justice is not authorized to hear; if, therefore, the defendant dispute the plaintiff's title, the justice must dismiss the suit.(c) (3) It may also be proper to notice here, what will be considered for another purpose, more at large under a subsequent head, that in certain (3) The forms for pleading title and subsequent proceedings, will be hereafter given, and the subject resumed more at large in a subsequent part of the work. (v) 2 Mass. R. 174. (w) 6 Wen. 465. (x) id. (y) 2 Watts' R. 195. (z) 2 Southard's R. 809. (a) 7 Wen. 291. (e) 8 Cowen, 115. cases, definitively marked out by the statute and in no others, a justice of the peace may punish, as for a criminal contempt, persons guilty of the acts enumerated by the statute. (d) The power of punishment for contempts, was, before the Revised Statutes, supposed to be possessed by justices' courts in common with all other courts, by authority given by the common law, and it was universally acknowledged that every court had power, while in the exercise of its lawful functions, to preserve order, decency and silence, and that therefore the power to punish for a contempt, was incident to every court. (e) In order to define and regulate the exercise of this power by justices, the statute above referred to was passed, and the proper mode of proceeding in such cases therein explicitly pointed out-these forms, with further remarks on this subject, will be given in a subsequent part of the treatise under the head, "Of contempt of court, and how punished." (d) 2 R. S. 199, § 274. (e) 1 Str. 420. 1 Ch. Cr. L. 88,9. Vid. the remarks of Johnson, J. in S. C. U. S. reported in Niles' Weekly Register, vol. 20, p. 73. 1 Dall. 329. 10 John. 393. Ventr. 1. 1 Bay's R. 1, CHAPTER II. Of the nature of Actions cognizable before this Court. SECTION I. OF THE ACTION OF DEBT. THIS action should never be brought, except in cases where no other action will lie. A greater degree of nicety is necessary in prosecuting it, than in covenant or assumpsit, which lie in a great variety of cases upon contract where debt may also be brought; as upon a sealed agreement to pay a certain sum of money, for use and occupation, goods sold, money lent, money paid for another, or money had and received for the plaintiff's use; or indeed upon any promise, express or implied, to pay a certain sum of money, where the immediate contracting parties are also parties to the suit ;(f) and debt is not in any case sustainable unless the demand be for a sum certain, or for a pecuniary demand which can readily be reduced to a certainty.(g) I shall, therefore, in treating of the action of debt, confine myself to those cases only, where debt is the sole remedy; and these, I think, may be reduced to the following:-1. Debt for the recovery of the penalty of a penal or single bond. 2. On judgments in courts of record, and justices' courts. (h) 3. For various penalties imposed by statute, in which I include actions of debt for an escape,(¿) and the negligent non-execution of final process in a justice's court.(j) 1. An obligation or bond is a deed, whereby the obligor obliges himself, his heirs, executors and administrators, to pay a certain sum of money to another, at a day appointed. If this be all, the bond is called a single one; but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else remain of force. In case this condition is not performed, the bond is said to be for (f) Vid. Esp. Dig., N. Y. ed., part 2, p. 1, 2 and 3.1 Ch. Pl. 97, 98. (g) 1 Ch. Pl. 102. (h) 19 John. 162. 16 id. 233. 2 R. S. 182, § 157. feited, and an action of debt may be sustained upon it. (k) The party executing the bond is called the obligor; the other party the obligee. Very few bonds come within the jurisdiction of a justice in this form of action, as the penalty generally exceeds fifty dollars; and the judgment must be rendered for this, though execution can issue for no more than the money or damages due and assessed for a breach of the condition.() If the penalty exceed fifty dollars, be the amount of the condition never so small, the justice cannot take cognizance of an action of debt upon such a bond. (m) Bonds are generally conditioned for the payment of money, or the condition may be to do any other lawful act; as a bond to the sheriff, that a prisoner shall not escape from the jail liberties, which bond is by statute made assignable to the party at whose suit the prisoner is committed, in which case, provided there be a breach, such person may maintain an action in his own name ;(n) or the condition may be to convey or deliver real or personal property, to perform covenants in a deed, to indemnify against certain acts, suits or events, or that a third person shall do some lawful act, &c. 2. Debt is the only proper action on a decree or judgment for the recovery of money rendered by one of our domestic tribunals, or on a judgment rendered by a court of another state. (o) Thus, debt is the only proper action on a decree of the court of chancery for the payment of money, a judgment of the supreme court, court of common pleas, or justice's court of this state,(p) or on a judgment of any court of record in another state ;(9) and though the judgment be erroneous, yet debt lies until it be reversed ;(r) but either debt or assumpsit may be brought on a judgment rendered by a court of another country,(s) and it is supposed that either of these actions would be sustainable on a judgment rendered by any court of another state, other than a court of record; for the act of congress of 26th May, 1790, ch. 11,(t) which provides for the authentication of judicial proceedings of the state courts, in order to make them evidence in the different courts of the United States, applies only to courts of record; it is thought therefore that the judgments referred to, would be considered the same as foreign judgments so far as actions for their recovery are concerned. The following case is proper to be (k) 2 Blac. Com. 340. (n) 15 John. 474. (q) 19 John. 162. 7 Cranch, 481. (8) 1 Doug. 1. 2 Vern. 540. 6 John. (t) 2 L. U. S. 102. 2 R. S. 354, § 58, 9. 132. |