#### THOMAS GARRETT, ADMINISTRATOR, &c. vs. HENRY M. SHAW.

June 1843

Where a justice of the peaco has jurisdiction of the principal question, as on a contract to pay for certain articles, he also has the jurisdiction to determine every incidental question, as for instance, •whether the condition upon which the contract was to be executed has been performed.

Appeal from the Superior Court of Law of Camden County, at Spring Term, 1843, his Honor. Judge Pearson presiding.

This action wrrs commenced by warrant before a single justice of the peace. The proof was, that in 1841, the plaintiff’s intestate had got out a number of juniper rails in a certain swamp — that an action of trespass Q,. C. F., in the name of the defendant Shaw, (who was not in actual possession but claimed title,) as plaintiff, against the present plaintiff’s intestate was then pending, in which the plea of *liberum tenementum*was relied on — that, pending this action and while the intestate was engaged in carrying the rails out of the swamp to the landing, the defendant came and insisted upon taking the rails, which the intestate permitted him to do, upon his promising to pay for the rails unless the swamp was his — that the rails taken were worth about $20. The plaintiff also proved, that at the same time an action of Trespass &. C. F. in the name of Shaw against one Jesse Dailey, for getting rails in another part of the same swamp, which Shaw alleged was also covered by his title, was pending, in which the plea of *liberum tene-meulum*was relied on. — that the intestate and Shaw agreed, that, in case Dailey’s suit was carried to the Superior Court, as both cases depended upon the same question, to,wit, the *396of Shaw to the swamp, the suit against the intestate should abide the event oí that against Dailey: if Shaw recovered against Dailey, the intestate was to pay for the trespass he had committed ; but if Dailey was successful, then Shaw was to dismiss the case against the intestate. At Fall Term, 1841, of the Superior Court, the action against Dai-ley was tried, and there was a verdict and judgment in favor of Dailey. Soon after the decision of that case, the warrant was issued, after which, at the next Term of the County Court, Shaw submitted to a nonsuit in the case against the plaintiff’s intestate. The plaintiff also proved that, upon the trial of the case against Dailey, the fact of cutting the timber was admitted, and the only question submitted to the jury and decided was the title of Shaw to the swamp. This evidence was objected to by the defendant, but admitted by the court. The defendant’s counsel insisted, 1st. That the justice had jurisdiction ; 2dly. That there was not sufficient evidence that the swamp did not belong to the defendant. The court was of opinion that the justice had jurisdiction. A promise to pay the value of certain rails was within the jurisdiction, and the condition did not have the effect to take away the jurisdiction. A jurisdiction over the principal implied a right to try all the incidental qualities. The court was also of opinion, that, supposing it was for the plaintiff to shew that the swamp did not belong to Shaw, instead of Shaw’s being required to shew affirmatively that the swamp was his, so as to defeat the promise by the condition, still the verdict and judgment in the case against Dailey, explained and connected with the question of Shaw’s title, as between the parties to this suit, as it was by the evidence, was at least *prima facie*evidence that the swamp did not belong to Shaw, and, in the absence of any proof of title by Shaw, the jury should find for the plaintiff upon the promise proved. There was a verdict for the plaintiff, and judgment being rendered pursuant thereto, the defendant appealed.

No counsel for the plaintiff.

*Kinney*for the defendant.

*397Daniel, J.

The judge below was of opinion that the justice of the peace had jurisdiction in this case, and we are of the same opinion. He has jurisdiction for a balance due on any special contract, and for goods sold and delivered. Rev. Stat. ch. 62, s. 6. But it is said, that these goods were to be paid for upon a condition, and a justice cannot determine a case of this description, because it may involve the question of the title to land. We think that he can, because, by the act of Assembly, he has jurisdiction of the principal question, namely, the special agreement to pay for the rails, and that necessarily involves the jurisdiction of determining every *incidental question. Secondly ;*the plaintiff proved by a witness, that, upon the trial of the suit a- , gainst Dailey, the fact of the cutting of the timber was admitted, and that the only question submitted to the jury and decided was, the title of Shaw to the swamp.' This evidence was objected to by the defendant, but admitted by the court. The objection really has no force, except that the evidence was superfluous in further establishing what the record had already. Thirdly, the defendant objected that the warrant was brought too soon, being before he had dismissed his suit. But the answer is, that the question, upon which the plaintiff’s right depended, had been decided, which was the title to the land as determined in the suit against Dailey.

Per Curiam. Judgment affirmed.