
    Strong and others against Smith.
    If a defendant, before a justice, rely, in an action of trespass, on his title, he confesses the trespass, and cannot, on moving the cause into this court, plead the general issue.
    This was an action of trespass commenced before a justice of the peace in the county of Suffolk, under the “ Act for the more speedy recovery of debts to the value of twenty-five dollars.” 1 Rev. Laws, 491. The defendant justified under a plea of title. Upon this, proceedings' were stayed before the justice pursuant to the tenth section of the act, (Ibid. 494;) and *the action prosecuted before the court of common pleas; from thence the defendant removed it by habeas corpus into this court, where he pleaded, 1st. The general issue; 2d. That the closes mentioned in the declaration, were the freehold of the trustees of the freeholders and commonalty of the town óf Huntington, and that by their command and direction, he entered; 3d. That the trustees of the freeholders of the town of Huntington were seised of the premises, and granted him a lease for a year, by virtue of which he entered and was possessed until the plaintiffs, by color of title, turned him out, on Ivhorii he again entered, arid committed the trespasses complained of.
    A suggestion of these circumstances, according to an in-tiination on a former day given by the court, having been entered on the-record, an -application was now made to ofuripel the defendant to strike Out his plea of the general issue, and rely on his title only.
    
      Higgs, for the plaintiff
    The justification by way of title is ‘an admission of the trespass. It is only on the strength of this admission that the defendant has been able to take the-cause from the jurisdiction before which it was originally brought. He can never, therefore be r.ow permitted to contradict what he has thus conceded.
    
      Sanford, contra.
    The tenth section confines the reliance on title alone to the common pleas. There is not a word of this court; when, therefore, the suit is removed here, it is to be prosecuted according to the. rules and practice of the tribunal before which it is brought, in the same manner as any other action originating here.
    
      Biggs, in reply.
    The intent of the statute was to confine actions for trifling damages to the inferior court; in the common pleas, the production of the defendant's plea countersigned by the justice, would have been conclusive against the general issue. The same reason applies now. Under the statute the defendant has a right to elect, either to rest on his innocence, or insist on his title. Having made his election, he cannot vary the right given by this election to the plaintiff of considering the trespass admitted. The delay alone is against it. A witness may die. But we ground ourselves on the spirit and object of the act.
   Per Curiam.

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.

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.
     