This action is trespass quare clausumfregit, and was originally commenced before a justice of the peace, and in which only seven dollars damages are demanded ; and except by reason of the pleas of the defendant, is exclusively within the jurisdiction of such justice of the peace.
To this action before the justice, the defendant pleaded two pleas of title, and the cause was, thereupon, removed to the county court, under the provisions of the 65th section of the “ Act for the regulations of Civil Actions.”
1. Double pleading of title before a justice of the peace, under this statute, ought not to be sanctioned. Such practice would create embarrassment, cannot be necessary, and is not justified, by the statute authorizing double pleading. A second plea to the same matter, by the rules of the common law, is never admissible ; and by statute, it is never permitted only by leave of the court; and if the court has no power to grant the leave, such second plea cannot be interposed. By the aforesaid 65th section of the Act for the regulation of Civil Actions, it is enacted : “ That when in any action of trespass qua-re clausum fregit, brought before a justice of the peace, demanding not more than seven dollars damages, the defendant shall justify, by plea of title to the land, a record shall be made thereof, and the matter of fact shall be taken to be confessed, and the defendant shall become bound to the adverse party, before such justice of the peace, &c., that he will prosecute his plea, and enter such cause in the next county court,” &c. The *327plea of title is the end of all pleading before the justice; and • . , . as soon as given, the judicial power of the justice of the ceases in the cause, if the bond required by the statute be procured; and he has no discretion, either to grant or withhold leave to plead a second plea.
The defendant, by his first plea, averred title to the whole land described in the declaration, and thereby justified every act of trespass, of which the plaintiff could complain. This constituted an entire defence, and presented an unembarrassed question of title; but on the trial, it was abandoned, by the defendant, who resorted to his second plea of title as his only defence; which plea, for the reasons suggested, was inadmissible. These facts would justify a refusal to grant a new trial; but as no objection of this nature was made, at the trial, the case will be considered without reference to it.
2. The second plea, upon which only a trial was had, alleges title in the defendant to a certain parcel ofland particularly described therein ; a part of which land is a part only of the land described in the plaintiff’s declaration, and upon which he claims the trespasses were committed. And the plea avers, what was very essential to constitute an entire defence to the action, that the land in the plea thus particularly described, is the same land upon which the trespasses complained of were committed ; and thus necessarily implying, that no acts of trespass were committed upon any other part of the land described in the declaration. Under this plea the defendant proved, that he had committed some acts of trespass upon the land thus described in his plea, and to which he claimed title, and then objected, that the plaintiff could not be permitted, for any purpose, to prove other acts of trespass upon other parts of the land described in his declaration, without a new assignment; and contended, that the investigation was to be confined to the question of title to the land described in his plea. The court did not admit the correctness of this claim, but admitted the evi-idence objected to, and therefore, this motion for a new trial is presented.
It is not necessary, perhaps, to decide whether, on the trial before the superior court, the plaintiff might have been permitted to new assign other acts of trespass than those justified, by the defendant’s plea of title. The question is, was he bound to do it; and was the evidence offered by him admissible with-*3280Ut ^ Whatever may be the principles of the common law regarding new assignments, I think the present question should be considered with reference to our statute, by virtue of which only this cause was removed from the jurisdiction of the justice of the peace, and entered for trial in the county court. It was not the intention of the statute referred to, to remove a cause from the jurisdiction of the justice of the peace, before whom it was commenced, unless the defendant’s plea of title interposed an entire defence to the whole of the plaintiff’s claim ; and if it did, then every fact constituting the plain tiff’s claim being admitted, the question of title, and that alone, was to be referred to the decision of a higher court. The question before such court, therefore, must be, whether the defendant has so established a title paramount to the plaintiff’s title, as to justify all the trespasses for which the suit was brought ; and if he has not, he has not made his plea good, within the meaning of his bond. I think the evidence to prove acts of trespass committed on other parts of the land claimed by the plaintiff, and for which he brought his suit, was admissible, as well to disprove the allegations in the defendant’s plea, as to show the damages sustained by the plaintiff; and in these respects, this caséis not unlike the case of Barnes v. Hunt, 11 East, 451. That was an action of trespass quare clausumfregit, in which the plaintiff declared, that on the 1st of September, 1808, and on divers other days and times, between that day and the day of exhibiting the plaintiff’s bill, the defendant broke and entered the plaintiff’s close, «fee. and setting forth divers acts of trespass. The defendant pleaded the general issue, and also specially in bar, that at the said several days and times when, cfec. he committed the said several trespasses, by leave and license of the plaintiff. On the evidence in the case, it was made a question at the trial, whether as the plaintiff had declared for trespasses committed on a particular day, and on divers other days and times afterwards ; and the defendant’s plea alleged generally, that he had done all the acts complained of, by the license of the plaintiff; and the whole of that pled was put in issue; there was any necessity for the plaintiff to have made a new assignment to enable him to recover for the trespasses committed prior to the license ? It was contended for the defendant, that there was nothing in issue, except the cause of justification, namely, the license, and that if the defendant *329had proved any trespass covered by his license, the issue must be decided for him. But the court did not recognize this claim-of the defendant; but held, that unless the defendant could prove his whole plea, and show that the license covered as many trespasses as the plaintiff had alleged and was able to prove, it was not a defence to the action. And so in the present case, the question was not solely whether the defendant had title to the land described in his plea, but whether all the acts of trespass were committed upon it? And the plaintiff was permitted, for the purpose of contradicting such averment in the plea, as well as to ascertain the damage sustained, to show that they were not.
It is obvious, I think, that an admission of the principle here claimed, by the defendant, as applicable to a cause removed from a justice of the peace under the statute aforesaid, would be to permit a defendant, in every such case, to draw a plaintiff, by a frivolous plea of title, away from the tribunal before which he had properly commenced his action, into the county and superior courts, not to try a title to land, under a plea of title, but to try something else growing out of a new assignment, which is in the nature of a new declaration.
For these reasons, also, I am of opinion that a new trial ought not to be granted.
The other Judges were of the same opinion, except Peters, J., who was absent.New trial not to be granted,