plaintiff to establish his title in order to recover, the objection may be taken by the defendant, that the title to land comes in question; and it is the duty of the justice, in whatever stage of the trial this shall appear, to dismiss the action. Although in many cases between landlord and tenant, the latter is estopped from disputing the title of the former, yet where a stranger to the original transaction claims that he has succeeded to the rights of the landlord, it is competent for the tenant to deny his claim, and thus put him to the proof of his title. In such case, whatever be the amount in controversy the case is no longer within the jurisdiction of a justice of the peace.

In Adams agt. Reviss 11 Barb., 390, General Term, July, 1851, WILLARD, J., it was decided, that where the complaint, in a justice's court, is so drawn that the defendant can set up title in his answer, and on giving the requisite security, oust the justice of jurisdiction, but he omits to set up title, the justice retains his jurisdiction, and the defendant will be precluded from drawing it in question, on the trial.

In Bellows agt. Sackett, 15 Barb., 97, General Term, March, 1853, JOHNSON, J., it was decided, that where title to real estate is not pleaded, before a justice, he will not be ousted of his jurisdiction merely because it may be necessary to prove title, in order to sustain the action; unless such title is disputed by the defendant.

In Utter agt. Gifford, 25 How., 289, General Term, December, 1862, HOGEBOOM, J., it was decided, that where, in an action for trespass on lands, the answer in such action admitted that the premises were the premises of the plaintiff, and averred that the defendant entered upon said premises of plaintiff by the leave and license of the plaintiff, and the jury found a verdict for the plaintiff of $45, damages, and that the trespass was casual and involuntary; held, that the question of title did not arise on the pleadings, and the plaintiff was entitled to recover costs.

In Nichols agt. Bain, 27 How., 286, General Term, July, 1864; S. C., 42 Barb., 354, JAMES, J., it was decided, that where a deed of land is offered in evidence by the plaintiff in a justice's court, to prove the mere fact of the purchase of the land, as evidence of the performance of a condition precedent to the defendants liability upon a written instrument which is the foundation of the action, it is admissible, although the title is disputed by the defendant, as insufficient to convey the premises. Its admission does not draw in question the title to the premises so as to oust the justice of jurisdiction under section 59 of the Code.

In McNamara agt. Biteley, 4 How., 44, Special Term, June, 1849, WILLARD, J., it was decided, that where title is set up in a justice's court, by answer, under the Code of 1849, and a new suit is instituted in the supreme court, for the same cause of action to which the defendant interposes the same answer as before the justice, a reply in this (supreme) court, on the part of the plaintiff, is not necessary. On a new action being brought the complaint and answer must be as before the justice, without any further or additional pleadings. Previous to the amendment of 1849, the rule was different. (This case has been overruled.-See Jewett agt. Jewett, 6 How., 185, in the answer to question 4, section 60, post.)

In Heintz agt. Dellinger, 28 How., 39, General Term, October, 1864, DANIELS, J., it was decided, that where, in an action for trespass on lands, the metes and bounds of the premises claimed to be owned by the plaintiff, are set out in the complaint, and the defendant in his answer, admits that the plaintiff is the owner of the premises thus described, but denies that the alleged trespass is upon such premises; the issue on the trial is one of location, depending upon the accuracy of measurement, and does not involve the question of title.

In Gage agt. Hill, 43 Barb., 44, General Term, March, 1864, MILLER, J., it was decided, that where it appears, in an action before a justice of the peace, that the title to land is in question, and that such title is disputed by the defendant, the justice is pr hibited from taking cognizance of the action, and is bound to dismiss it. If he proceeds in the suit, after it appears that the title to land is in question, and is disputed, his proceedings are without authority, and his judgment void, for want of jurisdiction. Evidence of the proceedings and judgment in such an action is not admissible in a subsequent suit between the same parties, for the purpose of establishing the fact that the question involved in the latter suit had been decided in the former action before the justice, and that the judgment there was conclusive, and the controversy in the second suit res adju dicata. In order to render a judgment, on a fact or title distinctly put in issue, an estoppel, in another action between the same parties and their privies, in reference to the same subject matter, it is essential that the tribunal which passed upon the question in the former suit should have had jurisdiction.

See, also, note to § 55.

What is the result of the decisions under this section?

1. In whatever stage of the trial before the justice, the question of title to lands may be raised, the justice must dismiss the action; but if he refuse, his judgment will not be

void for want of jurisdiction but only voidable for error. This question is decided directly adverse in a subsequent case.--See Gage agt. Hill, ante.

2. Where the defendant can set up title in his answer to the plaintiffs complaint, but omits to do so, the justice retains jurisdiction, and the defendant will be precluded from drawing it in question on the trial.

3. Notwithstanding title to lands be not pleaded, but evidence thereof be given by the plaintiff before the justice, if the defendant do not expressly dispute such title, nor move to have the cause dismissed, the justice may properly proceed and render judgment.

4. A question, whether the defendant has obstructed the navigation of a river, as a public highway, and if so, whether the plaintiff has suffered injury thereby, does not involve the question of title to lands, and a justice of the peace may properly try such a

case.

5. To entitle a defendant to a dismissal of an action, pending before a justice, on the ground that title to land comes in question, he must call the justice's attention specifically to the objection, by at least disputing the title of the plaintiff.

6. Where the assignee of a lessor in a lease in fee, brings an action against the assig nee of the lessee, to recover rent, and the defendant in his answer denies all the allegations in the complaint, the title to land necessarily comes in question and ousts a justice of the peace of jurisdiction. And so in all cases where the tenant disputes the title of a stranger to the original transaction, who claims to succeed to the rights of the landlord. 7. In an action for trespass on lands, where the answer admits that the premises are those of the plaintiff, and avers that the defendant entered thereon by leave and license, and the plaintiff recovers $45 damages, and the jury find that the trespass was causal and involuntary, the question of title to land does not arise on the pleadings, and the plaintiff is entitled to recover costs.

8. In an action in a justice's court, where a deed of land is offered in evidence by the plaintiff to prove the mere fact of the purchase of the land, in order to show the grounds of the defendants liability upon an written instrument upon which the action is founded, it is admissible although the title is disputed by the defendant, as insufficient to convey the premises; and it does not draw in question the title to the premises so as to oust the justice of jurisdiction.

9. In an action before a justice of the peace, where title is set up by answer, and a new suit is instituted in the supreme court, for the same cause of action to which the defendant interposes the same answer, a reply in the supreme court is not necessary. (Overruled.-See § 60, answer to 4 Q.)

10. In an action for trespass on lands, where the metes and bounds of the plaintiff's premises are given, and the defendant in his answer, admits that the plaintiff is the owner of such premises, but denies that the alleged trespass is upon such premises; the issue does not involve the question of title, but one of location only.

$60. New action in supreme court; pleadings therein.

When a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections fifty-five, fifty-six and fifty-seven, the plaintiff may prosecute an action for the same cause in the supreme court, and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant shall set up the same defense only which he made before the justice

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1851 and 1858, which last amendment reads as above 2. Q. How did this section read in 1848 and 1851 ?

A. As follows:

$53. [1848. Same as § 60 in 1849.] When a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections 48, 49 and 50, the plaintiff may prosecute an action for the same cause in the supreme court, and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant shall be the same which he made before the justice.

$60. [1851.] When a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections fifty-five, fifty-six and fifty-seven, the plaintiff may prosecute an action for the same cause in the county court, and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant shall set up the same defense only which he made before the justice.

Questions.

3. Q. Should a reference be made to the suit before the justice when the action is commenced in the supreme court?

4. Q. Should the pleadings be the same in the supreme court as they were before the justice?

5. Q. Can a defendant abandon a part of his defense in the supreme court?

6. Q. Can the pleadings in the supreme court be amended in matters of substance?

3. Q. Should a reference be made to the suit before the justice when the action is cmmenced in the supreme court?

A. In Royce agt. Brown, 3 How., 392, Special Term, December, 1848, WILLARD, J., it was decided that it seems that, in an action before a justice of the peace, where title is set up, and a new suit is thereupon commenced in the supreme court, the summons or complaint, or both, in such suit, should allude to the suit before the justice, by some appropriate

averment.

In Brotherton agt. Wright, 15 Wend., 237, General Term, May, 1836, SAVAGE, Ch. J., it was decided that the justice may prove the pleadings exhibited before him, without producing his docket or a transcript; that the pleadings in the common pleas ought to present the same issue which was presented in the justice's court.

4. Q. Should the pleadings be the same in the supreme court as they were before the justice?

In Tuthill agt. Clark, 11 Wend., 642, General Term, May, 1834, NELSON, J., it was decided that, where the defendant puts in an answer different from that tendered to the justice, the remedy of the plaintiff, if he wishes to get rid of such a plea, is by motion to strike it out; and a like motion, it seems, may be made by a defendant, should the plaintiff declare for a cause of action different from that relied on before the justice. If such objectionable pleadings are not stricken out, the cause must be tried upon the pleadings as they exist. A plaintiff in an action in which a plea of title is interposed may new assign in a justice's court, but he cannot do so in the court above.

In Brotherton agt. Wright, 15 Wend.. 240, General Term, May, 1836, SAVAGE, Ch. J., it was decided that, where a plea of title is interposed in an action of trespass quare clausum fregit, in a justice's court, and the plaintiff proceeds in the common pleas, and the defendant there pleads the general issue, and a defense of title in himself, and also title in others, the common pleas may disregard the pleadings before them so far as to limit the defense to the plea of title, and if the defendant fails to show title in himself, to direct a verdict for the plaintiff. It is sufficient that the declarations in the two courts be substantially alike.

In People agt. Albany C. P., 19 Wend., 123, General Term, June, 1838, BRONSON, J., it was decided that, where the defendant has pleaded title to a complaint of trespass quare clausum fregit, in a justice's court, the plaintiff, if he prosecutes the action in the common pleas, may there, in his declaration, particularly describe the close, although he did not do so in the justice's court. And if it appears that the plaintiff, in his declaration in the common pleas, proceeds for trespass upon premises other than those on which he alleged before the justice the trespass was committed, or if the defendant has been misled, the common pleas may, on either of those grounds, grant relief, but not for the alleged departure in pleading?

In Royce agt. Brown, 3 How., 392, Special Teem, December, 1848, WILLARD, J., it was decided that, where title is set up in a justice's court by the answer, the cause is taken from his jurisdiction before a reply is put in. But that does not supercede the necessity of a reply when the new suit is instituted in the supreme court for the same cause of action. The cause is to be treated with respect to the pleadings subsequent to the answer, like any other cause originally commenced in the supreme court. The Code ( 144), applies to such a suit, and, consequently, every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 131, must, for the purpose of the action, be taken as true. This decision was made under the Code of 1848, which was in 1849 altered so that a reply to an answer in a justice's court is not necessary in any case; the cause is at issue before the justice without it. And it was held by the same justice who made the decision in 1848 that, where title is set up in a justice's court by answer since the Code of 1849, and a new suit is instituted in the supreme court for the same cause of action, to which the defendant interposes the same answer as before the justice, a reply in the supreme court is not necessary, and if put in, will be struck out on motion. (McNamary agt. Bitely, 4 How., 44, Special Term, June, 1849, WILLARD, J.) This last decision was overruled by the general term of another district, in the following case of Jewett agt. Jewett (6 How. 188).

In Jewett agt. Jewett, 6 How., 188, General Term, November, 1850. ALLEN, J., it was decided, that in an action commenced before a justice of the peace where the answer of the defendant interposes a plea of title by which the justice is ousted of jurisdiction, and an action for the same cause, is commenced in the supreme court, the action must be governed by the rules of pleading and practice by which other actions are conducted in that court, except where the statute has provided otherwise. And the only statutory regulation restricting the parties in their pleadings, is that contained in section 60 of the Code, which requires the plaintiff to complain for the same cause of action only on which he relied before the justice, and that the answer of the defendant be the same he made before the justice. Therefore, where the answer contains allegations of new matter a reply is necessary in the supreme court, as in other actions. And so too, if it is proper that the notice authorized by section 64, be given in the answer, because this notice is contained in and made part of the answer.

In Kidder agt. De Groot, 1 Code, R. N. S., 272, Special Term, June, 1851, MITCHELL, J., it was decided, that in an action commenced in the supreme court after a discontinuance in a justice's court, by reason of title coming in question; the form of the complaint and answer may differ from that used in the justice's court. And in such an action the plaintiff may reply.

In Pugsley agt. Kisselburgh, 6 Seld., 420, January, 1853, JOHNSON, J., it was decided, that where the defendant, in an action brought before a justice of the peace for trespass upon lands interposes a plea of title, and an action for the same matter is thereupon commenced in the supreme court, it seems that no refereace need be made in the pleadings to the proceedings before the justice- Where the record does not show that the action was originally commenced in a justice's court, that fact on a motion to dismiss the appeal, may be shown by affidavit.

5. Q. Can a defendant abandon a part of his defense in the supreme court?

A. In Wiggins agt. Talmadge, 7 How., 406, Court of Appeals, January, 1853, JOHNSON, J.. it was decided, that the Code, (8 60.) does not require the defendant to use the ident cal words in his second answer, but only the same substantial defense which he interposed. before the justice. And the defendant may abandon part of his defense before the justice, when he comes to answer in the supreme court, and yet the defense may be the same within the meaning of the statute.

6. Q. Can the pleadings in the supreme court be amended in matters of substance? A. In Wendell agt. Mitchell, 5 How., 421, Special Term, August, 1850, HAND, J., it

was decided. that a party could put his pleadings below in proper form in the supreme court, or, however inartificially drawn, this court could treat them as in proper forin, but could not amend so as to affect them in matters of substance.

In Cusson agt. Whalon, 5 How., 302, Special Term, March, 1851, HAND, J., it was decided, that where the cause was removed from a justice's court, by a plea of title, and giving an undertaking, it was held, that the defendant could not have amended his answer, and the plaintiff was in default for not bringing the cause to trial.

In Gould agt. Glass, 19 Barb., 186, General Term, January, 1855, JAMES, J., it was decided, that where a case originates in a justice's court, neither the supreme court nor the county court has any power, under the Code, to amend the pleadings therein, on' appeal.

What is the result of the decisions under this section?

1. (3 Q.) It seems that the summons or complaint, or both, in a suit commenced in the supreme court, on discontinuance of the suit in the justice's court, on a plea of title interposed, should allude to the suit before the justice, by some appropriate averment. This seems to be overruled. (9,4 Q. post.)

2. The justice may prove the pleadings exhibited before him, without producing his docket or a transcript. The pleadings in the supreme court ought to present the same issue which was presented in the justice's court.

3. (4 Q.) If an answer different from that tendered to the justice is put in, in the supreme court, the remedy of the plaintiff, if he wishes to get rid of it, is by motion to strike it out, and a like motion may be made by the defendant, if the plaintiff declares for a different cause of action in the supreme court. If such objectionable pleadings are not stricken out, the cause must be tried upon the pleadings as they exist.

4. A plaintiff in an action in which a plea of title is interposed, may new assign in the justice's court, but he cannot do so in the supreme court.

5. If a defendant pleads title in the justice's court, to an action of trespass quare clausum fregit, and the plaintiff proceeds in the supreme court, and the defendant there pleads a general denial and a defense of title in himself, and also title in others, the supreme court may disregard the pleadings before them, so far as to limit the defense to the plea of title. It is sufficient that the complaints in the two courts be substantially alike.

6. In an acton of trespass quare clausum fregit, if the defendant pleads title, the plaintiff, in the action in the supreme court, may in his complaint particularly describe the close, although he did not do so in the justice's court, and for that departure in pleading, the defendant is not entitled to any relief.

7. Where the answer interposes a plea of title, by which the justice is ousted of jurisdiction, and an action for the same cause is commenced in the supreme court, the action must be governed by the rules of pleading and practice by which other actions are con ducted in the supreme court, except where the statute has otherwise provided. Therefore, where the answer contains allegations of new matter, a reply is necessary in the supreme court as in other actions.

8. Where an action is commenced in the supreme court, by reason of a plea of title interposed in the justice's court, the form of the complaint and answer may differ from those used in the justice's court. This section does not require the defendant to use the identical words in his second answer, only the same substantial defense. And the plain tiff may reply in the supreme court.

9. In an action commenced in the supreme court, upon the discontinuance of one in the justice's court by reason of a plea of title interposed, it seems no reference need be made in the pleadings to the proceedings before the justice (court of appeals).

10. (5 Q.) The defendant may abandon part of his defense before the justice, when he comes to answer in the supreme court and yet the defense may be the same within the meaning of the statute.