tained a verdict-on which the justice made the following entry: I give judgment accordingly. There was no previous notice to deliver possession given; the justice issued execution, and in which literally trebled the costs.

Mr. Halsey, for the plaintiff in this court, moved the reversal of the judgment, alleging first, that the judgment was irregular, uncertain, and in fact could not be called a judgment. Second, that no notice was given to deliver possession, which he contended was necessary under our act of Assembly. And third, that the justice had mistook the method of trebling the costs, which the act in such cases allowed.

Mr. A. Ogden, for the defendant, contended that notice in this case was not required; and that the costs were rightly trebled; that he knew no other way of doing of it, than the plain one of multiplying the amount of the taxable costs allowed by the act in such cases, by three.* That the judgment was well entered, and in [*] the words of the act of Assembly. But even if it was not, advantage could not be taken of it, for that no judgment was necessary; that it was evident from the precedents in the books, that a judgment, in cases of forcible entry and detainer, was not requisite ; that the justice might have issued execution on the finding of the jury, without rendering judgment; that the entry made by the justice, if unnecessary, ought to be rejected as surplussage.

This case was argued in November term, and in this term, Pennington, J. delivered the following opinion, in which the Chief Justice and Rossell, J. concurred.

PENNINGTON, J.-The justice, after recording the verdict, instead of pronouncing and entering a regular judg ment, says I give judgment accordingly. This certainly is no regular judgment. In the 13th section of the act concerning forcible entries and detainers, the justice, on the finding of the jury against the defendant, is required to record the verdict, and to give judgment thereon, with treble costs; and also to issue a writ of restitution, &c. And in the 16th section of the same act, it is made the duty of the justice to enter on his minutes or docket, among other things, the verdict, and his judgment thereon. This precision shows that a regular judgment was contemplated by the Legislature; therefore it is considered, &c.

It is said by the counsel for the defendant in this court, that by the precedents in the books, executions are issued in cases of forcible entry and detainer, without judgments be

See ante 110.

ing entered, but merely on the finding of the jury. I very much question his correctness in this respect; the counsel for the plaintiff have produced a precedent to the contrary, in 3 Lord Ray. 15, where a judgment in forcible entry and detainer is regularly entered in technical form. But even if this was the case, it would afford no rule for us; we must pursue our own statute, which in terms requires a judgment to be rendered. The English statutes respecting forcible [*] entries and detainers, are silent as to judgment. On the finding of the jury, the justices are required to cause, to re-seise, or re-possess the land, &c. so entered upon or detained, and put the party in possession. 8 Hen. 6, c. 9; 21 Jac. 1, c. 15.

But even in England, I apprehend, that a judgment is an indispensible requisite, especially in cases where the inquisition hath been traversed: 1 Bur. J. 265. It is the conclusion that follows from the law and the fact, and the ground work and foundation of the execution. As to notice to deliver possession, I think it necessary only in cases of unlawful detainer, where the tenants hold over. And as to trebling costs, I think that it is evident from the case of Thoroughgood vs. Scroggs, Cro. Eliz. 582, that the actual cost must be multiplied by three; that is, if the legal costs be ten dollars, judgment must be rendered for thirty. But for the uncertainty and incorrectness in the rendering judgment, I think these proceedings must be quashed.

In these actions of forcible entry and detainer, where the defendant is to be turned out of possession, the act ought to be strictly pursued.-Proceedings quashed.

WOODRUFF vs. FROST.

ON CERTIORARI.

Parol evidence inadmissible to contradict written.

THIS was an action brought by the plaintiff in this court, against the defendant, on a written promise. This written promise contained on one side of a paper an account against the defendant, of various items, in all $83 06; and on the other, a written promise, for [*] value received, signed by the defendant, to pay the amount of the within statement or bill, except nine dollars. On the trial the justice admitted witnesses against the objection of the plaintiff, to prove, as he says in his docket, the sum due if any; and the defendant recovered. It was objected by the plaintiff's counsel, that by this proceeding the justice suffered parol testimony to be given, to contradict the written agreement of the defendant; and on this ground the court

Reversed the judgment.

COOK, Adm. of Denise, vs. HENDRICKSON.

ON CERTIORARI.

Defective return on summons cured by appearance and plea. (a) Judgment for damage, in action of debt, no cause for reversal. (b)

THE first error complained of in the proceedings below was, that the return of the constable to the summons was defective. The fact appeared to be so; but the defendant appeared on the return day of the summons, and filed a plea. It was not contended, but that the appearance and plea would have cured the defect in the return; but it also appeared, that after the appearance and filing the plea, the defendant below moved the justice to non-suit the plaintiff for the defect in the return; and that the justice refused to non-suit on that ground.

BY THE COURT.-The justice did right; it was too late after appearance and filing a plea, to take advantage of the defect in the return of the summons.

The second objection to the proceedings of the justice was, that the action was an action of debt; and that the verdict and judgment was for damage. But the [*] court said, that was a mere verbal mistake, for which they had never reversed a judgment—and Affirmed the judgment.

J. JESSUP, Jr. vs. A. SHARP, Esq.

ON CERTIORARI.

For penalty under the swine act, the demand must state the facts as well as the appraisement. (c) If defendant attend the trial, evidence will be presumed. (d)

THIS was an action brought for damages under the swine act, on the following state of demand:

Amos Sharp, the plaintiff, comes into court and demands of John Jessop, defendant, the sum of $2 28, and craves judgment for the same. To $1 28 to appraisement of John Sleeper and Jacob Hains, for damage of one of his hogs; and to $1 28 agreeable to the act of the Legislature, which makes $2 28.

The parties appeared by consent, and the justice in his record says, after hearing the allegations of the parties, I give judgment in favor of the plaintiff for the sum of $2 28 debt, and ten cents costs.

The first exception taken to the proceeding below was, that this must have been a trial without evidence, no witnesses being examined. But the court said, that in cases

(a) So by adjournment by objecting party, Post, 653.

(6) Nor is verdict and judgment for debt, in covenant, Post, 375. (c) Vide Ante, 250. (d) Acc. Post, 852.

where a trial had been had in the absence of the defendant by default, and the nature of the action such as to require the examination of witnesses, they had considered it as a trial without evidence, and reversed the judgment for that cause; but had never gone so far as to reverse the judgment for this cause, when the defendant was present, as he might admit facts sufficient to maintain the action.

It was then objected, that the state of demand was insufficient to maintain the action, as it merely set out [*] the appraisement and not the other requisites of the statute; and for this cause the court reversed the judgment. C. Kinsey, for plaintiff.

i

MING v8. COMPTON,

ON CERTIORARI.

Justice of the peace may try trespass quare clausum fregit, but not on a plea of title. (a)

THIS cause came up on certiorari from a justice's court. The only question for the decision of the court was, whether justice's courts have jurisdiction of the action of trespass quare clausum fregit.

KIRKPATRICK, C. J.-Said that it had been decided in this court, that the justice's courts had not jurisdiction of this action; and he thought rightly. That the title of land came in question, even on the plea of not guilty; and therefore by the express words of the act, constituting courts for the trial of small causes, the justices were excluded from the jurisdiction of these actions; and, therefore, was for a reversal of the judgment.

ROSSELL, J.-Was of opinion, that the act did not shut out the jurisdiction of the justice in this case; and, therefore, was of opinion, that the judgment ought to be affirmed.

PENNINGTON, J.-The action below was an action of trespass quare clausum fregit, plea of not guilty-trial by the justice without jury, and judgment for plaintiff. The question is, had the justice jurisdiction of the cause? The first section of the act constituting courts for the trial of small causes, giving a general cognizance to justices of the peace, in all causes not exceeding sixty dollars, excepts, among others, "any [*] action wherein the title of the land, tenements, hereditaments, or other real estate, shall or may in any wise come in question." As the title of land may, in an action of trespass quare clausum fregit, in cer

(a) Acc. 6 Halst. 62.

tain cases, come in question, I should incline to think, in case this section stood alone, that the justice's courts were shut out of the jurisdiction of the cause. But then what is to become of the 30th, 31st, and 32d sections of the same act, providing expressly for a plea of title to real estate; not, however, giving jurisdiction to the justices to try the title to real estate, but to authorize the defendant to stay the proceedings before the justice, by putting in such a plea, and giving bond to appear to a suit to be instituted against him in the Supreme Court by the plaintiff, and there abide by his plea of title-otherwise the justice to proceed as if no plea had been offered. I cannot perceive to what action this plea of title to real estate is to apply, unless it is to an action for trespass on land. The action of replevin is excepted in express terms; and it certainly is not pretended that the justices have jurisdiction of real or mixed actions. These three sections appear particularly adapted to meet the action of trespass on land, by enabling the defendant to oust the justice of a cognizance of the cause, by putting the title in issue. By considering the intention of the Legislature to be, to give the justices jurisdiction of the action of trespass quare clausum fregit, except in cases where the title to real estate actually came in question, will at once reconcile the whole act. It is said, that the plea of not guilty puts the title in question. I doubt the correctness of this position; it appearing to me that the general issue only puts the possession, and not the title in issue; at all events, the plea of not guilty could not have been the plea contemplated by the Legislature in the three sections above mentioned, but a plea of justification, putting the title in issue, corresponding with the idea of Sir William Blackstone in the 3d vol. of his Com. 214, where he says, that "a man may also [*] justify in an action of trespass, on account of the freehold and right of entry being in himself, and this defence brings the title of the estate in question.

I am, for the above reasons, of opinion, that the justices have cognizance of the action of trespass on land, except in cases where the defendant thinks proper to oust them of jurisdiction, by an actual plea of title, accompanied with the requisites marked out in the three sections above mentioned. Judgment affirmed.

[*347]