
    [*] WESTERVELT against MARINUS and others.
    In suit for trespass, in the Supreme Court, after pleading title before a justice, the only plea allowable, is that of title.
    
      Tlie plaintiff in this cause, had brought an action before a justice of the peace, against the defendant, for a trespass on his land. The defendant appeared before the justice, and tendered a plea of title, and entered into bond under the statute, for his appearance in this court, to an action to be brought by the plaintiff. This being done, the defendant pleaded to the action in this court, not only a justification by way of title, but also the general issue, not guilty; to the plea of the general issue he had added a notice of special matter, setting out a title.
    
      Mr. Van Arsdale, for the plaintiff,
    moved the court to strike out of the defendant’s pleas, the plea of not guilty, thereby to confine the defense to the title, in conformity to the provisions of the statute; as a precedent for which, he cited from New York Term Rep. 28, the case of Strong v. Smith, where the same thing had been done under like circumstances.
    
      Mr. Hornblower, contra.
    The general issue pleaded in this case, is done only to let in notice of special matter under the act “to facilitate pleadings;” the judge at the circuit will confine the evidence to the title.
   Pennington, J.

Suppose this cause under trial on the present pleadings, who would have the onus; would not the plaintiff be bound to make out the trespass ?

Hornbloiver. I apprehend not; if the proceeding before the justice should be suggested on the record, according to the intimation of the New York case.

The court took time till the next day to consider the question; when they were unanimously of opinion, that the plaintiff was entitled to his motion.

Rule allowed.

Cited in Inhab. of North Brunswick v. Booraem, 5 Halst. 257; Trustees Dover School House v. McFarlan, 2 Gr. 471; Shotwell Ex. v. Dennis, 2 Gr. 501; Appleby v. Obert, 1 Harr. 336; Campfield v. Johnson, 1 Zab. 83.  