Chester Sage & Co. v. Keesecker , 1 Morris 338 ( 1844 )

Per Curiam,

Mason, Chief Justice.

In this case it will become necessary to decide whether a defendant, who, by interposing a plea of title, transfers an action of trespass from before a justice of the peace into the District Court, can there give in evidence a mere right of possession. What is to be understood by the “ plea of title” mentioned in the statute, and what kind of title can be relied upon in support of such plea? Evidently only such a9 may be legitimately pleaded specially in contradistinction to the general issue. We know of no other plea of this nature but the plea of liberum tenemenlum, or freehold. 1 Chitty 541; Stephen on Pl. 314.

And what then must be done by a defendant in such an action who wishes to protect himself by the fact that he had the right of possession to the locus in quo by a title less than freehold? He must plead the general issue. The plaintiff in the first instance is only bound to show actual or constructive possession. But it ⅛ a good defence under the plea of not guilty, to show a right of possession in the defendant. Hyatt vs. Wood, 4 Johns. 150. Even a freehold title may be given in evidence under general issue, lb. But still it may be pleaded specially because if does not negative color of title in ths plaintiff. Chitty & Stephen ut supra. But the right of immediate possession cannot bo specially pleaded as it would amount to the general issue; Collett vs. Flien, 5 Cowen 466.

The defendant having brought a case into the District Court by a plea of title must rely upon that plea alone. Statutes of 1843. page 319, He cannot deny the trespass, nor resort to the proof of such tille as would not be pleadable specially, and which could only be given ⅛ evi,-. dence under the general issue..

Judgment affirmed.