
    Thomas E. Waggaman vs. Ephraim S. Randall et al.
    Equity. No. 24068.
    
      < Decided January 10, 1883.
    
      ) The Chief Justice and Justices Cox and James sitting.
    1. An appeal lies to the General Term from an order of the Circuit Court striking out a plea of title in a landlord and tenant case and remanding the same to the justice of the peace for trial on the merits.
    2. When a defective plea of title is strciken out by the Circuit Court and the cause remanded to the justice of the peace the defendant may there file a new or amended plea of title.
    Statement oe the Case and Decision oe the Court.
    This was a proceeding commenced before a justice of the peace to recover possession of certain premises in the city of Washington. The plaintiff averred in his complaint that the premises were detained without right by Charles G. Godfrey and Ephraim S. Randall, to whom plaintiff had leased the same under the firm name of Godfrey & Randall, and whose tenancy and estate therein had determined by the terms of the lease.
    Godfrey did not appear and no step was taken in his behalf. Randall appeared and filed a plea of title, averring : “ That the title to said premises is in Mary E. Stone, and that, the said title hereby claimed is not derived from any letting of the premises by the plaintiff, or by those under whom the plaintiff claims, and is not derived from any forcible entry or forcible detainer.”
    Plaintiff objected, that this plea was defective in its failure to aver that the defendant claimed the premises under Mary E. Stone.
    The justice certified the case to the Circuit Court, where the plaintiff moved to strike out the plea of title and remand the cause to the justice for trial on the merits. This motion was sustained, and the cause thereafter coming on for trial before the justice, the defendant filed a perfected plea, averring that he claimed under said Mary E. Stone, in whom he pleaded title. The case being again certified to the Circuit Court for trial on this plea, the plaintiff again moved to strike it out and to remand the cause to the justice for the following reasons :
    1st. Because the former plea of title has been by the court adjudged a nullity, and it was the duty of the justice of the peace, when the cause was remanded to him, to have tried the same, and to have rendered judgment in the matter as the right of the case required.
    2d. Because the said defendant Randall elected to stand upon his former plea of title, and cannot file a second plea •or amend his former plea ; and because no amendment to a plea of title or additional plea can lawfully be made.
    This motion being sustained, the defendant appealed to the General Term, where the judgment was reversed and the •cause remanded to the Circuit Court for trial upon the plea •of title as amended.
    Wm. 3?. Mattingly for plaintiff.
    Charles S. Moore and W. T. Johnson for defendant.
     