Brotherton vs. Wright, 15 Wend. 237

By the Court, Savage, Ch. J. I will consider the exceptions in the order in which they arose in the court below. The common pleas decided correctly in receiving the testimony of the justice, without requiring the production of his docket. The Revised Statutes, vol. 2, p. 270, § 248, provide that “ the proceedings in any cause, had before a justice, may be proved by the oath of the justice.” By the previous sections, it had been provided that a justice’s docket, or a transcript certified by him, shall be good evidence before himself ;• and a transcript signed by him, verified by a certificate of the county clerk, shall be evidence in all courts. The

section referred to then provides that the proceedings before a justice may be proved by his oath. The evidence here embraced the pleadings only; which was proper, particularly as they were produced in court. In 10 Wendell, 596, Nelson, justice, says that the contents of the docket cannot be proved by parol. Here no contents of the docket were proved, except the pleadings which were produced. There is no material variance between the declaration before the justice and the declaration in the common pleas.

The words of the statute are , that “ the plaintiff in such suit shall declare only for the same cause of action whereon he relied before the justice.” The two declarations agree in stating that the trespass was committed on the same lot as described by metes and bounds, and the trespass is laid on the same day. The declaration in the common pleas, like many other pleadings, contains a great deal of useless verbiage, but surplusage does not vitiate, nor in this case does it prove a variance. The court decided that the defendant must be confined to the defence before the justice.

The language of the statute is explicit, that “ the plaintiff shall declare only for the same cause of action whereon he relied before the justice ; and the plea or plea and notice of the defendant shall be the same which he tendered to the justice.” In the case of Tuthill v.

Clark, 11 Wendell, 644, and 12 id. 207, it was held, that in case the parties in the common pleas departed from the pleadings before the justice, the proper mode of correcting the proceeding was by special motion ; but if both parties go to trial under a different state of pleadings, without making such motion, the suit in such case must be considered an original suit in the common pleas. In this case, it has already been remarked that the declaration is substantially the same in both. courts.

The plea before the justice was a plea of title simply; in the common pleas the defendant pleaded the general issue, and gave notice of title in himself, and also title in two others. The plaintiff was therefore correct in moving to confine the defendant to his defence before the justice, and it was not too late to make the motion at the trial. 7 Cowen, 346. In this court it would be the subject of a motion at a special term. Probably the better mode of practice would have been to have moved to strike out the defendant’s plea and notice ; but that was a question of practice.

The pleadings in the common pleas ought to present the same issue which was presented in the justice’s court. Under our former statutes, the defendant was bound to plead title alone; but under that plea, he might show possession or title out of the plaintiff. By the revised statutes, the defendant may plead title specially, or may plead the general issue and give notice to that effect, and such plea, and notice may be joined with any other proper plea to the action, 2 R. S. 236, § 59; but whatever may be the form of the plea before the justice, the same form must be pursued in the common pleas.

The court therefore did all they could to put the parties in the position in which they ought to have put themselves ; they decided correctly. The court were right also in refusing a nonsuit. The plea pleaded by the defendant in the, justice’s court admitted the trespass; and as the court had restored the pleadings to the same issue presented before the justice, the pleadings themselves admitted the trespass, and no proof therefore was necessary. Had it been necessary, sufficient was given by the defendant’s witnesses. The court correctly charged the jury that the defendant had failed in showing title in himself.

The issue was upon the defendant’s title, not the plaintiff’s; and the evidence does not sustain that issue. He should have proved title from the state to himself, or from some person who was admitted by the plaintiff to have had the title; but no evidence of that kind was given. He produced title from Peter Smith, but for any thing appearing in this case, Peter Smith never had title ; and therefore the defendant had none. As the title to land was the issue before the court, and the cause was carried into the common pleas by the plea of the defendant, the court decided right upon the question of costs.

Judgment affirmed.