Opinion by
Redeield, Ch. J.As I concur in the judgment just pronounced, it seems scarcely needful to specify the grounds of that opinion. But on one point, the intimation of the opinion of the court is so important, in its practical bearings, and so much opposed to my own views of the true principle of the just application of the doctrine of estoppels, that I shall briefly express my dissent.
I. I entertain no doubt the justice has jurisdiction of the action of trespass on the freehold, where the damages claimed are less than twenty dollars.
II. It is certain, that is an action where the title of land is concerned,, but not ordinarily brought in question. This portion of the jurisdiction of a justice is, therefore, in derogation of the general limits of jurisdiction, between justice courts and the county court. In all other cases the justice jurisdiction is prohibited, “ where the title of land is concerned.” This exception, too, is clearly made from convenience, and not with any view to encourage the bringing of actions, where the title of land is concerned, even in trespass quare clausum fregit, before justices, in as much as full costs are given in such actions, in the county court, “ where the court shall certify that the title of land came in question.” This exceptional jurisdiction, in this class of actions, to justices, was clearly not intended to bring into justice courts actions of *222trespass', where the title of land came in question, or it was a hona fide object of the suit to try the title. This class of actions was undoubtedly intended to be brought, in the first instance, in the county court, else full costs would not there be given, without reference to the amount of damages. It was clearly, then, not the purpose of the legislature to have justices, in any action, try the title of land, but this jurisdiction, as is well known, was conferred, to enable justices to try that class of actions, where a question of damages merely was contested, and the claim below $20. But the title might come in question, and if it did, would not oust the jurisdiction, after the repeal of the proviso to the act of 1824.
But we think it obvious to infer, that it was no part of the design of the legislature to confer upon justice courts, any jurisdiction to try and determine the title of land. In all other cases, actions involving the title to land are studiously excluded from the cognizance of such courts.
It is true indeed, that the question of the validity of title to land may incidentally come in question in almost any action, before a justice, and if it do so come in question, does not oust the jurisdiction. In an action upon note for $50, the title of an estate sold for $20,000 may come in question, and itbecome necessary to decide it, in order to determine the validity of the note. And it might equally come in question in an action upon a note below $20, and so the judgment of the justice be final. But did any one ever suppose, that such an adjudication might be used to defeat a recovery upon all the other notes, and that it even settled the question of the title to the land between the parties too, so that, in an action of ejectment, this collateral determination of the justice, in the action on the note, could be used as a conclusive estoppel, upon the question of title to the land? We think few men would be prepared to carry the doctrine of collateral estoppels to such absurd lengths. But there is no calculating the extent to which general rules will be applied in the law. Lawyers and judges seem to have an abhorrence of exceptions to general rules, as nature was formerly said to have, to a vacuum ! Common minds, especially if at all educated, seem to suppose there is a wonderful symmetry maintained, if general rules are made universal / But experience and true wisdom shows, that the symmetry and beauty *223consists in maintaining the principle, with such exceptional cases as do not fairly come within the principle.
And in carrying our illustrations of this case a step farther, to show that it does not really come within the true principle of estoppels, we have only to suppose the wife should swear the peace against the husband, and some collateral question should arise, by which it became necessary for the justice to pass upon the question of the validity of the marriage, or of an alleged divorce between the parties, could any man be so insane as to claim, that such questions were thus forever settled, in all future actions between the same parties ? Or in an action of asstímpsit, for necessaries furnished the wife, it might become necessary for the justice, in order to determine the action, to decide either the validity of the original marriage, or its continuance; and is such decision of any force in any other action, even between the same parties, in another court.
It seems to me, these illustrations must show, to the comprehension of all, that a collateral determination of a question in a court, having no general jurisdiction of that class of questions, wants the basis of a binding estoppel, i. e., the decision of the same question, between the same parties, by a competent tribunal. Can it fairly be said that a justice court is a competent tribunal to decide questions of the title to real estate, when that whole subject has been studiously excluded from their cognizance? I trust not.
The whole subject of collateral estoppels is one of comparatively recent origin, in this state and in England. And it is exclusively of the creation of the courts, and like fictions of law, ought not to be allowed to aid in the perpetration of wrong. But if the doctrine is to be carried to this ludicrous extent, I, for one, shall feel compelled to fall back upon my Lord Coke’s definition, that “ estoppels are odious! not to be favored! that they shut out truth,” &c.! But when the question fairly arises, whether the decision of a justice, in an action of trespass quare clausum fregit, settles finally the title to the land, I yet believe, that this court will not be prepared to perpetrate such an absurdity, as to hold that it does. I certainly do not desire to have it supposed, that by silence, I have become participator in such a deed. This doctrine has already been carried to the utmost limit of reason and *224justice, iu this state. And within proper boundaries it is a salutary and conservative doctrine, but like all other conservatism, when misapplied, it is calculated to bring all its kindred into contempt, and public odium.
In the case of Barrs v. Jackson, 1 Young & Collyer 585, 594, after the most learned and elaborate examination of the subject, the learned vice Chancellor Knight Bruce, declares bis opinion of collateral estoppels, even when the court has general jurisdiction of the subject, that they are never binding upon other courts, in regard to the same question between the same parties. What such a judge would say to a collateral estoppel, claimed on account of the incidental determination of the question by a court, having no general jurisdiction of the subject matter, it is difficult to conjecture, as no such question has ever arisen anywhere, except in the present case.