
    The People ex rel. A. B., vs. The Judges of Yates Common Pleas.
    A suit in trespass commenced before a justice of the peace, and a plea of title interposed, &c,, and the Plaintiff commencing another in the Common Pleas for the same trespass, the latter suit, by the constitution and Judiciary Act, is transferred to the Supreme Court. A demurrer to a return to an alternative mandamus against the judges of the Common Pleas affecting such a suit, cannot be argued as a calendar cause in the Supreme Court. If the relator is entitled to relieij it must be by motion.
    
      Seld, that it was doubtful, even if the suit was one which remained in the County Court, whether the writ of mandamus could be further prosecuted.
    
      Ontario General Term,
    September, 1847.
    Before Justices Maynard, Selden, and Sill.'—This was a demurrer tó a return to a writ of alternative mandamus directing the judges of Yates Common Pleas to revoke an order setting aside a demurrer to a plea of a Defendant in a suit wherein the relator was Plaintiff.
    Prosser, of counsel for the relator, commenced the argument. The ' ■court, stopping the counsel, asked if the suit in the Common Pleas was, by the constitution and Judiciary Act, transferred to this court.
    The counsel stated that the suit was an action of trespass, first commenced before a justice of the peace, where the Defendant interposed a plea of title and executed a bond, &c. The relator then commenced a suit in the Common Pleas for the same trespass.
   By the Court.

We are of opinion that the suit is now in this court, and that the relator, if entitled to relief, must apply here by motion. The court intimated a doubt, even if the suit was one which remained in the county court, whether tie writ of mandamus could be further prosecuted—and refused further to hear the argument, and struck the cause from the calendar.  