The construction of the act no doubt is, that when a defendant, sued for a trespass before a justice, relies *on his title, he admits the trespass. But lest the title should be in a third person, the act gives him a right to show that also. Either one of the other acknowledges the trespass To this, as the whole matter appears on the record, it would not be permitted the defendant on the trial at nisijprius to say the contrary, nor would the plaintiff be called on to prove the trespass done. The general issue, then, is perfectly nugatory, and must be struck out, but not with costs. [1]
Spencer, J. dissentient.Motion granted without costs.
1] See to the same effect, Brotherton v. Wright, 15 Wend. 237; Marsh v. Berry, 7 Cow. 344. But now, by section 65 of the Code of P., the defendant, in a justice’s court may, either with or without other matter of defence, set forth in his answer any matter showing that such title will come in question.