Washburn vs. Tinkham, 8 N.H. 507

Parker, J. This case is settled by the case, Forsaith vs. Clogston, 3 N. H. R. 401. It is there said, that under the statute of February 9th, 1791, it has always been held that the title to real estate was drawn in question by a plea of soil and freehold. The defendant in this case gave notice that the title of lot No. 12 was in him, and that the acts done were on that lot. This is equivalent to a plea of soil and freehold, and entitled the defendant to offer evidence of title in himself, by showing title to lot 12, and that the locus in quo fell within that lot.

The principle may be tested by an enquiry what course must have been pursued had the action been brought before a justice. In such case, had the defendant pleaded the general issue, he might have put the plaintiff to prove his title, and have introduced evidence to contradict the plaintiff’s evidence ; but could have introduced no evidence to show that the title to lot No. 12 was in himself. 3 N. H. R. 401.

But if he had there pleaded a plea similar to this brief statement, the justice would no longer have had power to try the case, and the action must have been entered at the common pleas, under the provision of the statute. This shows that the statement brings title in question, and the motion to limit costs must be overruled.