As this cause came from a justice’s court, ‘ e it was subject to the regulations contained in the act relative to justices5 courts. (Laws, 31st sess. c. 204. s. 7.) That act provides, “ that it shall be competent to the defendant, notwithstanding his. plea of title, to show on the trial, &c. that the plaintiff had not possession of, or title to, the premises, at the time such supposed trespass was committed.” The defendant then might have shown three things, either of which would have entitled him to a verdict; viz. title in himself, title in a third person, or possession out of the plaintiffs. The case of Strong v. Smith, (2 Caines’ Rep. 28.) never was intended to lay down any proposition contrary to this, nor does it appear to. The decision in that case was, that the plea of the general issue should be struck out, because the fact of the entry upon the close in question, and of treading down the grass, or taking and carrying away the timber, &c. was admitted by the plea interposed before the justice and brought into the court above! It is there said, that the defendant may show title in himself or a stranger. The case does not happen to say that he may also contravene the possession of the plaintiff, nor does it deny it. The substance of that decision was, that the plaintiff was not to be called upon to prove the trespass or actual commission of the fact; and that the plea of title was prima facie evidence of possession, and sufficient to throw it upon the defendant to prove the contrary.
In this case the defendant proved that he was in possession of the premises, and had been so for upwards of six years, and that the plaintiffs never had any possession, except that a tenant of the defendant delivered them a key of the house in March, 1809. This act of the tenant did not, and could not, in the least, prejudice the possession of the defendant; and indeed, every attornment of a tenant to a stranger is void. This proof was declared upon the trial not to be sufficient for the de*278fence. But as it appears to be a right allowed to every such defendant, by the act, to show that the plaintiff had not possession, the defendant showed enough to entitle him to a verdict. Though the parties afterwards went into testimony on the question of title,-there was nothing shown to contradict, but the evidence went to confirm the fact, that-the plaintiffs never had possession, for they purchased of one McMullen, who had never been in possession, but had brought an ejectment against the defendant, and which had been then pending about two years.
Onthis ground, then, and without reference to the title, the verdict ought to be set aside, and a new trial awarded? with costs to abide the event.
New trial granted.