omits to do so, the justice retains his jurisdiction, and the defendant will be precluded from drawing it in question, on the trial. 11 Barb. Sup. Ct. 390.

So, in an action to recover penalties for passing a toll-gate without paying the tolls, if the defendant intends to raise the question of title, he should set forth in his answer the matter showing that title will come in question, and should give the undertaking. If he does not do so, the justice has jurisdiction of the cause, and the defendant is precluded in his defense from drawing the title in question. 27 Barb. (N. Y.) 214.

SEC. 37. In an action, for disturbing a right of way, the defendant having established the title of the plaintiff by his own evidence, and having answered by a general denial, the title to real estate cannot be said to come in question so as to oust a justice's court from jurisdiction. 1 E. D. Smith (N. Y.) 402.

A contract for coal or stone is not a real contract, and an action for the price of such articles is within his jurisdiction. 27 Penn. State R. 323.

SEC. 38. Where title to real estate is not pleaded, he is not ousted of his jurisdiction, because it may be necessary to prove title, unless such title shall be disputed by the defendant. 15 Barb. 96.

SEC. 39. An agreement to remove a fence and open a road to its original width, has no reference to the title to land, so as to take it out of his jurisdiction. 10 Johns. 109.

SEC. 40. In an action of trespass on land, the plea of title comes too late, after pleading the general issue demanding a jury and obtaining an adjournment. 15 Johns. 304.

A plea of title and a compliance with the requirements of the statute in such cases, does not oust him of jurisdiction, in an action of debt for a penalty for not removing an obstruction in a highway. It is his duty to decide whether such plea, when put in, is appropriate to the action prosecuted before him. 7 Wend. 291.

SEC. 41. Where, in an action on the case for obstructing a river, the plaintiff claims that such river was a public highway at common law, and has been declared such by

statute, without making any other proof of his right, and no fact is shown by the defendant to controvert the right thus declared by law, but he pleads the general issue and introduces in evidence a grant from the legislature authorizing him to erect and maintain a dam across the river of such construction as not to interfere with the public right of passage, the title to land does not come in question so as to oust the justice of his jurisdiction to try the 8 Barb. Sup. Ct. 239.

cause.

The production of such a grant, by the defendant, is evidence that he holds in subserviency to the public right of passage, if it does not estop him from asserting the contrary. 8 Barb. Sup. Ct. 239.

The questions in issue in a such case, namely: whether the defendant has obstructed the navigation of the river, and if so, whether the plaintiff has suffered injury thereby, are such as a justice may lawfully try. 8 Barb. Sup. Ct. 239.

SEC. 42. He has jurisdiction in an action for the use and occupation of land, where the title to the land does not come in controversy, although there may have been no express agreement or contract for rent. 3 Eng. 118.

So where the title to real estate is admitted as by demurrer to a declaration alleging it. 2 Doug. 184.

So also of an action of trespass on the case brought against a town to recover for injuries alleged to have been sustained by reason of the insufficiency of a highway, which the town were bound to maintain, where the damages claimed are less than one hundred dollars, unless the defendants interpose such a plea as directly puts in issue the right of way. 19 Vt. (4 Washb.) 223.

SEC. 43. To a suit on a promissory note, a plea that the note was given in consideration that the payee would convey land to the defendant, that the payee had no title to the certain land and that he had failed to make the deed, does not oust the justice of jurisdiction. 7 Blackf. 302.

A justice may try a question of actual possession of land. 6 Hill, 537.

Question not being a question of title, within the meaning of the statute. 27 Barb. (N. Y.) 214.

A justice has jurisdiction in a suit brought by an indorsee on a promissory note, though land is the consideration of the note. 5 Watts, 482.

SEC. 44. An action of covenant broken on a deed to convey land in which a breach is assigned that the defendant was not seized or had no right to convey the land, brings the title to real estate directly in question, and is therefore not within the jurisdiction. 2 Mass. 455, 462, note.

SEC. 45. A question as to a private right of way affects the title to lands, and therefore is not within the jurisdiction. 2 Dutch. (N. J.) 308; 1 Harr. 226.

Neither can a justice try a question of title to a highway. 2 Root. 54; 19 Vt. (4 Washb.) 223.

Where the title to land is concerned in an action, and the justice consequently has no jurisdiction, it is a defect which may be taken advantage of at any time during the pendency of the action. 26 Vt. (3 Deane) 491.

SEC. 46. The rule with respect to the justice's jurisdiction in trespass is, that when the nature of the action is such that, in order to maintain it, the plaintiff must necessarily show on his part whatever may be the defense, something more than the pedis possessio, the mere actual occupation, and must give some evidence of title strictly so called, the action is not cognizable in a justice's court; but where the plaintiff need give evidence of no more besides the commission of the alleged trespass than of the mere possession, the action is cognizable and may proceed to judgment, unless the defendant shall interpose a plea of title, and thereby, under the statute, suspend the jurisdiction. 6 Halst. 62, 164.

SEC. 47. If a plaintiff, in order to sustain his action, is obliged to rely upon and prove a possessory title, even to premises described in his declaration, a justice has no jurisdiction of the suit. 20 Vt. (5 Washb.) 183.

SEC. 48. The term "land," as used in the exception to the statute giving jurisdiction to justices, is sufficiently comprehensive to include a right of way over the real estate of another, whether held by the public or an individual. 19 Vt. (4 Washb.) 223.

But a justice is not excluded from taking jurisdiction of

an action, merely because, under the plea of the general issue or a plea in bar, the title of land may be drawn into controversy, but only when the action necessarily involves such an inquiry as ejectment and other real actions, or when, by the course of pleading, the title to land is actually contested. 19 Vt. (4 Washb.) 223.

He is not divested of his jurisdiction over the case in all respects: he still retains the power to act on a motion to waive or amend the plea, or to amend the declaration, or to new assign; and if the pleadings, as definitely fixed by the parties, do not present a question of title to real estate, he should proceed to try the cause. 19 Pick. 419, 422, note,

167.

He has no jurisdiction in an action of trespass quare clausum, where the defendant justifies on the ground that the locus in quo is a highway. 19 Wend. 373; 6 Hill, 342. Nor in an action for damages by overflowing the plaintiff's land. 3 Harr. 430; 2 South. 507.

SEC. 49. The judgment given in a case where the title to land plainly comes in question, is not void for want of jurisdiction, but voidable for error. 6 Hill, 44.

He has no more authority to judge of the plea of a title on demurrer than on the merits. 2 Root, 359.

To entitle a defendant to a dismissal of a cause, pending before a justice, on the ground that the title to land comes in question, he must call the justice's attention specifically to the objection, by at least disputing the title of the plaintiff. 8 Barb. Sup. Ct. 239.

Where the title to land is concerned in an action, and the justice consequently has no jurisdiction, it is a defect which may be taken advantage of at any time during the pendency of the action. 26 Vt. (3 Deane) 491.

CHAPTER III.

CONTRACTS IN GENERAL.

SECTION 1. The statute gives to justices of the peace jurisdiction of actions arising on contracts for the payment of money only. In this class of actions is included every claim

of money owing, whether the claim is upon a written instrument or a promissory note, or any other obligation, in writing, to pay money, or whether the claim arises upon promises to pay, not in writing, as for the price of goods sold or for the value of services performed, at the request of another. Nor is it necessary that the price of the goods or the value of the services be agreed between the parties. The party at whose instance the goods are sold or services rendered, must pay to the party selling the goods or rendering the services their value in money, to be determined by proof in the absence of an agreement. This rule asises from a plain and obvious necessity, that unless the contrary can be proved, it must be assumed that whenever a state of facts exists which makes it the duty of a party to pay money, he is supposed to have contracted to pay it. The statute says: "on contract for the payment of money only." From this language it is manifest that a justice can render a judgment for money only. If, therefore, a note is given payable in wheat, or potatoes or other article not money, and is not paid at the time agreed upon in the article promised, the contract then becomes one to pay the value of such article in money. If the claim be not less than three hundred dollars, a justice cannot entertain jurisdiction of it. If, however, the plaintiff only demand judgment for a sum less than three hundred dollars, exclusive of interest, if the demand draws interest he may act, although there be more than that sum due upon the contract. Freeman vs. Powers, 7 Cal. 104.

SEC. 2. There are three classes of contracts: 1st. Contracts of record, such as judgments. 2d. Specialties or sealed contracts, as deeds, covenants and bonds; and 3d. Simple contracts, in which are included all contracts or agreements not under seal, whether they be in writing or mere verbal promises. Contracts not under seal, are called parol contracts or parol agreements, though they be in writing. Cowen's Treatise, 40.

SEC. 3. Mutual agreement of the parties to a contract is necessary to its validity. The judgment or decree of a court, is a mutual agreement in law, founded upon the principle that the parties to the action agree to abide the judgment