¶1Opinion of the court delivered by
¶2The plaintiff now moves to strike out all the plea as improperly and irregularly pleaded — the defendant being confined, it is insisted by the terms of the statute, to the strict plea of title.
¶3The first and fifth pleas being the general issue, and leave and license are improperly pleaded, and must be struck out. It has been repeatedly held in this court, that upon a plea of title before the justice, and a suit commenced for the same cause of action, pursuant to the provisions of the statute, in this court, the defendant must hero rely for his defence upon title only. Westervelt v. Marinas, 2 Penn. 693; Appleby v. Obert, 1 Harr. 336; Snedicker v. White, 6 Halst. 87; Ellett & Boyce v. Pullen, 7 Halst. 357.
¶4The recent case of Phillips v. Kent, decides merely that the defendant is not restricted in his defence in this court to the same title pleaded before the justice, but does not authorize his having recourse to any other plea than to that of title.
¶5The second, third, and fourth pleas are substantially each in itself a justification of the trespass under the defendant’s title as tenant for a term of years. The validity of the plea in itself considered, is not impeached upon this motion., nor is it denied that if admissible under the provisions of the statute, it may form a valid defence to the action. The ground of objection to each plea is, that it is neither technically, nor within the contemplation of the statute, a plea of title. It is obviously not a plea of title, in the strict and technical sense of the term. It sets up no right of freehold either in the defendant, or in any other person; and if in contemplation of the statute a plea of liberum tenementum is required at the hands of the defendant, then clearly, these pleas are improperly pleaded.
¶6The statute declares that the jurisdiction of the justice shall not extend “ to any action wherein the title to any lands, tenements, hereditaments, or other real estate shall or may in any wise come in question. R. S. 230 § 1.
¶7*85It further directs, that when in any action brought by virtue of the act, “the defendant shall, as a justification, plead title to any real estate in himself, or in another,” he shall commit the said plea to writing, and the same being signed and countersigned in the manner prescribed by the act, the plaintiff may thereupon commence his action in the Supreme Court. Rev. Stat. 241, § 40.
¶8The statute, both in limiting the jurisdiction of the Justice, and in prescribing the mode of proceeding, uses simply the phrase “ title to real estate.” It draws no distinction between freehold and leasehold estate, but uses the term in its broadest and most unlimited sense.
¶9“Title,” says Sir Edward Coke, “ is when a man hath lawful cause of entry into lands whereof another is seised. It signifies the means whei’eby a man comes to his lands or tenements.” “ The word title includes that right, but is the more general word.” Title is generally applied to signify the right to land and real effects. It is the right of possession or of property in lands, as distinguished from the actual possession, and it is precisely in this sense that the word appears to have been used in the statute now under consideration. The right to try actions concerning real estate, involving the mere fact of possession, is vested in the court for the trial of small causes. But the statute excludes from its jurisdiction all cases whex-e either in the support of the fiction, or in the maintenance of the defence, any right or title is involved other than the naked fact of possession.
¶10It has accordingly been held that if the plaintiff in an action of trespass is necessarily required to offer any evidence of right or title to the premises in question, and cannot maintain his action upon the mere proof of possession, the court for the trial of small causes has no jurisdiction of the case. But on the other hand, if the plaintiff in support of his action need show no more than the mere fact of possession, the action is cognizable before a justice, although the wrong complained of be a permaneut iixjury to the freehold. Gregory v. Kanouse, 6 Halst. 62.
¶11So an action of trespass for mesne profits, after a recovery in ejectment, is not cognizable before a justice of the peace, although proof of a recovery in ejectment, or of a mere possessory title is sufficient to sustain the action. Pickle v. Covenhoven, 1 South. 319.
¶12In Randolph v. Montfort, 1 Harr. 226, it was held that a claim, to a way was not within the jurisdiction of the court for the trial of small causes, and that the defendant could not in that tribunal attempt the justification of a trespass by proving a right of way over the locus in quo. The court say that “ a way is a hereditament, and if the defendant meant to insist upon any right or title thereto, for justification of what is prima facie a trespass, he should have pleaded his title or right of way in law. We allow a justice to try the question of possession merely of corporeal hereditaments, but beyond this we have not gone. For this there is a good reason, as possession can be proved by parol; it is a matter of fact merely.”
¶13Inasmuch then as the second, third and fourth pleas seek to justify the trespass charged in the declaration, by setting up a right or title in the defendant, though it be but a possessory right to the locus in quo. ■ I am of opinion that they amount, in contemplation of the statute, to pleas of title; and that the motion, so far as it relates to these three pleas, must be denied.
¶14Carpenter, J. concurred.
¶15Cited in Brain v. Snyder, 1 Vr. 57; Dickerson v. Wadsworth, 4 Vr. 360; Hawk v. Segraves, 5 Vr. 356.