The opinion of the court was delivered by
Isham, J.
On the trial of this cause at the circuit, the plaintiff introduced evidence to prove a possessory right to the land described in his declaration, and also the injury of which he complains. The parties are adjoining proprietors of land, and the matter in controversy is in relation to the dividing line between them. For the purpose of showing a title, and right of possession to the land in dispute, the defendants gave in evidence the record of a suit before a justice of the peace, in an action of trespass on the free-hold, brought in favor of the plaintiff against the defendants and two others, who defended under their title.
From this record, it appears, that a judgment was rendered for the defendants; that the plaintiff appealed; and that more than twelve days before the session of the court to which the appeal was taken, the plaintiff, under the provisions of the act, paid the justice the costs allowed the defendants, in settlement of the suit. The appeal was never entered in the appellate court, and was no further prosecuted. It is admitted, that the alleged trespasses were committed on the same land, and that the title was in dispute and litigated before the justice. The county court held the proceedings in the justice’s court conclusive upon the title to the land, and directed a verdict for the defendants. For this ruling of the. court, these exceptions have been taken. The question arises whether that record is conclusive, between these parties, against the plaintiff’s title to the land.
The action of trespass quare clausum, fregit is a possessory action, the gist of which is an injury to the possession. The title to the premises is not necessarily involved in its prosecution. In this respect it is unlike the action of ejectment and other real actions; yet, the title may be litigated, as a matter directly involved in the issue, and when that question is adjudicated, and a judgment has been rendered in this form of action by a court having competent jurisdiction of the matter, the judgment will conclude the parties, [216]*216and will operate as an estoppel if the matter appears on the face of the record; or as evidence conclusive in relation to the title, in any subsequent litigation of that matter between them. Saund. on Pleading & Ev. 866. 1 East 244. Burt v. Steenburgh, 4 Cow. 559.
In relation to the jurisdiction of the justice, before whom these proceedings were had, and Ms right to adjudicate upon the question of title to the premises, we think there can be no doubt as to the construction of the act, or the intention of the legislature. The Comp. Stat. 288, § 20, expressly gives jurisdiction to justices of the peace in actions of trespass on the free-hold, where the sum in demand does not exceed twenty dollars. Jurisdiction is also given of all other actions of a civil nature, where the matter in demand does not exceed one hundred dollars, except actions of slander, false imprisonment, replevin above the sum of seven dollars, and where the title of land is concerned. TMs last exception will exclude from the jurisdiction of the justice, the action of ejectment ; case, against an officer for the defective levy of an execution ; covenant, on covenants in a deed, 2 Vt. 407 ; actions on the case for a nuisance, 11 Vt. 250; 20 Vt. 183; and, indeed, all actions in whatever form, where the title'to real estate is involved, except tMs particular form of action. Trespass on the free-hold, where the matter in demand does not exceed twenty dollars. TMs form of action, to this extent, is given by statute, and jurisdiction when not expressly taken away, is necessarily given over every matter that arises on common law principles under the issue formed in the case. "Where that jurisdiction exists, the conclusiveness of an adjudication is a matter of legal inference, unless a contrary provision is expressly made by statute.
The act of 1824, (Slades Comp. 140,) gave the same jurisdiction in this form of action to a justice; but provided, that if the defendant justified by plea of title, the records in the case were to be certified by the justice, and returned to the next term of the county court; in which court, the case was to be entered as an original action. Under this act, the legislature intended to take from the jurisdiction of the justice, the right to determine the question of title to land in this form of action, and tMs rendered necessary a special provision of that character. But in our present revision of the statutes, while the jurisdiction of a justice over this [217]*217action is continued, the provision is omitted, that the records áre to be certified to the county court, in case the defendant justifies under a plea of title; and instead thereof, the right of appeal is given to each party, whatever may be the matter in demand, while the right of appeal in other cases is limited. This legislation shows an evident intention to give the justice authority to decide upon questions of title, whenever, in this action the question arises; and the security of parties, in relation to the title of their land, is found in their right of appeal, which transfers the whole subject in controversy to an appellate court. This we .think, has been the general and practical construction of the act.
The effect of the judgment, which was given in evidence, and ■of the proceedings before the justice, is a matter of more difficulty. So far as the cause of action is concerned on which that suit was brought, we must, on the authority of the case of Catlin v. Taylor, 18 Vt. 106, regard those proceedings, as a bar to any other suit for that matter, and no further claim for damages can be made. In giving that effect to those proceedings, it is not necessary to ■consider that claim as having been adjudicated, or that a judgment still subsisting has been rendered thereon. It is sufficient for that purpose to say, that the commencement of the suit, the appeal taken from the judgment of the justice, the subsequent payment of costs in settlement of the suit, and the neglect of the plaintiff to prosecute that appeal in, the appellate court, will operate as a retraxit, “ or an open and voluntary renunciation of the suit.” In such case, it is a bar to any action, for the same cause, or duty. 3 Blac. Com. 296. Jac. Law Dict 523, title Retraxit. If this suit had been brought for the same injuries, for which that suit was prosecuted, those proceedings would be a good defence to this prosecution. But this suit is brought for other injuries to the same land; and the question is, do those proceedings conclude the parties in this suit, on the question of title; in other words, is there a judgment unvacated, and still subsisting, in which the title to this land was the subject of express and direct adjudication. It is not sufficient, that a judgment was rendered by the justice, having jurisdiction of the subject matter before him, or that the title of the land was the subject of investigation; but it must also appear, that that judgment still remains in full force, unvacated and unreversed. Unquestionably, that judgment is binding upon the par-, [218]*218ties, and conclusively so, upon all matters that could have been and were actually determined and adjudicated, unless its effect is destroyed by the appeal allowed by the court. The statute gives to each party the right of appeal in cases of this character, but does not expressly declare, what its effect shall be on the judgment from which it is taken. If the appeal has simply the effect to suspend the judgment
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The opinion of the court was delivered by
Isham, J.
On the trial of this cause at the circuit, the plaintiff introduced evidence to prove a possessory right to the land described in his declaration, and also the injury of which he complains. The parties are adjoining proprietors of land, and the matter in controversy is in relation to the dividing line between them. For the purpose of showing a title, and right of possession to the land in dispute, the defendants gave in evidence the record of a suit before a justice of the peace, in an action of trespass on the free-hold, brought in favor of the plaintiff against the defendants and two others, who defended under their title.
From this record, it appears, that a judgment was rendered for the defendants; that the plaintiff appealed; and that more than twelve days before the session of the court to which the appeal was taken, the plaintiff, under the provisions of the act, paid the justice the costs allowed the defendants, in settlement of the suit. The appeal was never entered in the appellate court, and was no further prosecuted. It is admitted, that the alleged trespasses were committed on the same land, and that the title was in dispute and litigated before the justice. The county court held the proceedings in the justice’s court conclusive upon the title to the land, and directed a verdict for the defendants. For this ruling of the. court, these exceptions have been taken. The question arises whether that record is conclusive, between these parties, against the plaintiff’s title to the land.
The action of trespass quare clausum, fregit is a possessory action, the gist of which is an injury to the possession. The title to the premises is not necessarily involved in its prosecution. In this respect it is unlike the action of ejectment and other real actions; yet, the title may be litigated, as a matter directly involved in the issue, and when that question is adjudicated, and a judgment has been rendered in this form of action by a court having competent jurisdiction of the matter, the judgment will conclude the parties, [216]*216and will operate as an estoppel if the matter appears on the face of the record; or as evidence conclusive in relation to the title, in any subsequent litigation of that matter between them. Saund. on Pleading & Ev. 866. 1 East 244. Burt v. Steenburgh, 4 Cow. 559.
In relation to the jurisdiction of the justice, before whom these proceedings were had, and Ms right to adjudicate upon the question of title to the premises, we think there can be no doubt as to the construction of the act, or the intention of the legislature. The Comp. Stat. 288, § 20, expressly gives jurisdiction to justices of the peace in actions of trespass on the free-hold, where the sum in demand does not exceed twenty dollars. Jurisdiction is also given of all other actions of a civil nature, where the matter in demand does not exceed one hundred dollars, except actions of slander, false imprisonment, replevin above the sum of seven dollars, and where the title of land is concerned. TMs last exception will exclude from the jurisdiction of the justice, the action of ejectment ; case, against an officer for the defective levy of an execution ; covenant, on covenants in a deed, 2 Vt. 407 ; actions on the case for a nuisance, 11 Vt. 250; 20 Vt. 183; and, indeed, all actions in whatever form, where the title'to real estate is involved, except tMs particular form of action. Trespass on the free-hold, where the matter in demand does not exceed twenty dollars. TMs form of action, to this extent, is given by statute, and jurisdiction when not expressly taken away, is necessarily given over every matter that arises on common law principles under the issue formed in the case. "Where that jurisdiction exists, the conclusiveness of an adjudication is a matter of legal inference, unless a contrary provision is expressly made by statute.
The act of 1824, (Slades Comp. 140,) gave the same jurisdiction in this form of action to a justice; but provided, that if the defendant justified by plea of title, the records in the case were to be certified by the justice, and returned to the next term of the county court; in which court, the case was to be entered as an original action. Under this act, the legislature intended to take from the jurisdiction of the justice, the right to determine the question of title to land in this form of action, and tMs rendered necessary a special provision of that character. But in our present revision of the statutes, while the jurisdiction of a justice over this [217]*217action is continued, the provision is omitted, that the records áre to be certified to the county court, in case the defendant justifies under a plea of title; and instead thereof, the right of appeal is given to each party, whatever may be the matter in demand, while the right of appeal in other cases is limited. This legislation shows an evident intention to give the justice authority to decide upon questions of title, whenever, in this action the question arises; and the security of parties, in relation to the title of their land, is found in their right of appeal, which transfers the whole subject in controversy to an appellate court. This we .think, has been the general and practical construction of the act.
The effect of the judgment, which was given in evidence, and ■of the proceedings before the justice, is a matter of more difficulty. So far as the cause of action is concerned on which that suit was brought, we must, on the authority of the case of Catlin v. Taylor, 18 Vt. 106, regard those proceedings, as a bar to any other suit for that matter, and no further claim for damages can be made. In giving that effect to those proceedings, it is not necessary to ■consider that claim as having been adjudicated, or that a judgment still subsisting has been rendered thereon. It is sufficient for that purpose to say, that the commencement of the suit, the appeal taken from the judgment of the justice, the subsequent payment of costs in settlement of the suit, and the neglect of the plaintiff to prosecute that appeal in, the appellate court, will operate as a retraxit, “ or an open and voluntary renunciation of the suit.” In such case, it is a bar to any action, for the same cause, or duty. 3 Blac. Com. 296. Jac. Law Dict 523, title Retraxit. If this suit had been brought for the same injuries, for which that suit was prosecuted, those proceedings would be a good defence to this prosecution. But this suit is brought for other injuries to the same land; and the question is, do those proceedings conclude the parties in this suit, on the question of title; in other words, is there a judgment unvacated, and still subsisting, in which the title to this land was the subject of express and direct adjudication. It is not sufficient, that a judgment was rendered by the justice, having jurisdiction of the subject matter before him, or that the title of the land was the subject of investigation; but it must also appear, that that judgment still remains in full force, unvacated and unreversed. Unquestionably, that judgment is binding upon the par-, [218]*218ties, and conclusively so, upon all matters that could have been and were actually determined and adjudicated, unless its effect is destroyed by the appeal allowed by the court. The statute gives to each party the right of appeal in cases of this character, but does not expressly declare, what its effect shall be on the judgment from which it is taken. If the appeal has simply the effect to suspend the judgment of the justice, until a judgment is rendered by the appellate court on the appeal, we do not see, but its effect may be conclusive, if the party appealing fails to prosecute his appeal to judgment. But if the effect of the appeal is to vacate the judgment, and remove the suit from the jurisdiction of the justice, it is obvious, that no such consequences will follow; for, there is then no subsisting judgment in the case. In case of an appeal from the probate court, the appeal is taken from some order, sentence, or decree of the court; and the judgment of the appellate court is upon that order or decree from which the appeal is taken, and when made, it is to be certified to the probate court, where the same proceedings axe to be had, as if the decision had been made there. Comp. Stat. 324 § 36. The appeal gives no jurisdiction to the county or supreme court, to proceed and settle the estate, but simply to reconsider the decree of that court; and the judgment is to be enforced, and carried into effect by the probate court, as if no appeal had been taken. The jurisdiction of the probate court over the cause and the parties, is not taken away by the appeal. It may, therefor, more properly be considered, that the'order and decree of the probate court, is merely suspended, until the final decree of the appellate court is obtained. State v. McKnown, 21 Vt. 503. But a different construction is given to the act granting appeals from the judgment of a justice of the peace. When such an appeal is taken, the cause itself is removed, as well as the jurisdiction of the court over the parties taken away. The county court on such an appeal, do not simply revise the judgment of the justice, and certify that judgment to be carried into effect by him; but they take cognizance of the cause itself and jurisdiction over the parties ; they render their judgment, and carry that judgment into effect, by execution or otherwise, as if the suit had been originally commenced there. The justice has no further jurisdiction of the case, or of the parties, after the appeal has been taken. The effect of such an appeal [219]*219must necessarily be to vacate and render null the judgment of the justice; and so far as an adjudication of any matter involved in the suit is concerned, the parties are placed in the same situation as if no judgment had been rendered. This question has been directly determined in the case of Curtiss v. Beardsly, 15 Conn. 522, under a statute similar to' our own. It is deemed impossible to evade the reasoning and doctrine of that case, in its application to this. That was an action of debt on judgment rendered by a justice, from which an appeal was taken, but never entered in the appellate court, agreeably to the provisions of the act. The court observed, “ that from the view of appeals from justices, which has “ been taken, we entertain no doubt, that upon principle, the effect “ of the appeal was to vacate and render null the judgment of the “justice.” It was held, that the action could not be sustained. In the case of Campbell v. Howard, 5 Mass. 376, Ch. J. Parsons remarked, “ that when an appeal has been regularly allowed, no “ further proceedings can be had on the judgment, until through “ the default of the appellant, it be affirmed on the complaint of “ the appellee; and when the appeal is allowed, the judgment no “ longer, in legal construction, remains in force. The question has “ frequently been before the court, where a judgment appealed “ from, and not affirmed, has been pleaded in bar to another action “ for the same cause, and it has been considered as no bar; as a “judgment inoperative, and not in force, after the appeal was allowed. Paine v. C__, 17 Pick. 142. In the case of Fletcher v. Blair, 20 Vt. 126, this court remarked “that the legal effect of an appeal was to vacate the judgment rendered by the justice, and to remove the entire case into the county court.” Regarding tills to be the proper construction of the act regulating appeals from justices, the conclusion follows, that when the judgment of a justice is thus vacated by an appeal, there has been no matter adjudicated, or determined by the court; there is no existing judgment, which will conclude the parties, as a matter of evidence, or which can be relied upon as a matter of estoppel.
The Comp. Stat. 238 § 74 provides, that any party having appealed from the judgment of a justice to the county court, may at any time, not less than twelve days before the session of such court tender and pay to the creditor, or leave with the justice the amount of such judgment; or may tender to such justice a confession of [220]*220judgment in favor of the appellee, for the amount of the original judgment, with interest. In either event the statute provides, that there shall be no affirmance of the original judgment. If a judgment by confession is rendered, the statute provides, that it shall have the same, effect as an affirmance of the judgment, to preserve all liens and securities, which the plaintiff has for the collection of his debt. But the statute nowhere declares, what the effect shall be upon the judgment appealed from, where the amount is tendered or paid by the party appealing. To affirm, or render a judgment effectual, as such, which has been previously vacated and rendered null, it is necessary, unless some provision by statute is made otherwise, that the same solemnities be observed, that are required in the rendition of the original judgment. It is equally necessary for the affirmance, as well as for the rendition of an original judgment, that it be done by some judicial tribunal, having jurisdiction of the matter for that purpose. The payment of the costs by the appellant to the defendant, cannot have such an effect; for that is the act merely of the party, while the rendition of a judgment, either original, or by affirmance, is a judicial act, to be exercised only by one having judicial authority. When the statute provides, that in case of a confession, its effect shall be an affirmance of the judgment, to preserve all liens, and makes no such provision in case of a tender of the judgment, it is a reasonable presumption, that no such effect was intended by the legislature. Under the provisions of our act, where the judgment of a justice has been vacated by an appeal, a new judgment can be obtained, only by an affirmance of the judgment in the county court, on the complaint of the appellee, or by a confession by the appellant, or by a regular prosecution of the case to a judgment by the party appealing. If the judgment of the justice has not been affirmed in one of these ways, the only effect that can be given to the payment of the costs, is to consider it in the nature, of a retraxit, and a bar to any claim for the matters for which that suit was brought. To that extent the case of Catlin v. Taylor, 18 Vt. 106, is an authority; beyond that, we are not warranted to proceed by any adjudication of the court in that case. In giving that effect to those proceedings, we must regard the doctrine as peculiar to this state.
In Massachusetts, it would operate as a discontinuance of the [221]*221suit merely, and would be no bar to any subsequent suit for the same matters. 5 Mass. 376, by Parsons, Ch. J.
The judgment rendered by the justice, having been vacated by the appeal, and never affirmed, or prosecuted to judgment in the appellate court, we think there has been no adjudication on the question of title to these premises, and that there.is no existing judgment, which concludes the parties as a matter of evidence, for that- purpose.
The result is, that the judgment of the County Court must be reversed, and the case remanded.
In this case Chief Justice Redeield delivered the following opinion, in which the learned Judge discusses the doctrine of collateral estoppels, and dissents from the intimation of the opinion of the court upon this subject.