
    Cornelius H. Vanness against Elizabeth Nafie.
    ON CERTIORARI.
    Plea of title verfpi)111 tr°"
    
    THE state of demand filed by Ñafie, in the court below, is in technical form, for the trover and conversion, on the 21st of January, 1819, of two hundred and fifty chestnut and butternut rails, and one load of fire wood, to her damage one hundred dol*lars. At the proper time, the defendant pleaded title to the land, from which the rails and wood were taken, and tendered to the justice, a bond, executed according to the statute; but the justice refused to receive it, “ as he could not conceive that the title of land could in any way come in question, as the controversy respected a quantity of rails, which, in his opinion, were moveable property, and not attached to the freehold.” The verdict and judgment were for 9 dollars, 75 cents.
    
      Halsey, for plaintiff in certiorari,
    
    relied upon several reasons, but it is necessary to notice only the rejection of the plea and bond, by the justice.
    
      Dod, for defendant.
    
      
      
         Van Mater vs. Real, Pen. *472. Wilson vs. Clark, 1 South. 379.
      
    
   By the court

The justice ought to have received the plea and bond. The title to land may come in question, in an action of trover for rails and wood, as well as in trespass. The form of the action is nothing. The statute constituting courts for the trial of small causes, sec. 33, says, that when, in any action, to be brought by virtue of this act, the defendant shall, as a justification, ple^d title to any real estate, in himself or another, under whom he acted or entered, such defendant shall commit the said plea to writing, and having signed tho same, shall deliver such plea to said justice, who shall countersign, and deliver it to the plaintiff,” &c. This judgment must, therefore, be reversed.  