Ex parte Drew

Headnote

Myers sued Drew in a justice’s court, for trespass quare clausum fregit, alleged to have been committed jn Renssalear county. Drew justified by a plea of title, & J J r . 1 on the 4í&of June, 1825, and entered into a recognizance, such as is required by the 9th section of the 50 dollar act, (s^ss. 47, p. 283.) In May, 1826, a capias ad responden-dura was served on Drew, at the suit of Myers, issued out of the Rensselaer C. P. two terms of that court having intervened between the time of pleading, &é. before the justice, and the issuing: of the cavias. Myers declared for the ’ ° . , , , same trespass as the one in question before the justice; Drew put in special bail, and pleaded the general issue which the C. P. on motion, ordered to he stricken out, 7 with costs.

Where the de-tíSnt'"courtj pleads title to an action ot trespass quare heis toSo plea6 ⅛ the same action be-the (Titilo’ to c^'p! be not commenced at or before to term of to to^piea^s^in-terposed in the justice s court.

now moved for a mandamus, commanding the C. P. to vacate the rule to strike out, &c. and receive the plea. He said the only question was, whether the plaintiff could hold the defendant to his plea of title, in an action not brought till after the term next following the interposition of the plea in the justice’s court: and contended that he could not. He said the C. P. held, that by not commencing his action by the next term of the C. P. the plaintiff merely lost his right to compel the de

fendant to put in special bail, or forfeit his recognizance; but that he was, notwithstanding, compelled to put in his plea of title.