¶1The proof did not support the plea of liberum tenementum, 1 Chitty, 606, and the cases there cited; but it is said that it shewed title out of the plaintiff, which, it is alleged, constitutes a good defence under the proviso in the ninth section of the fifty dollar act, Laws of 1824, p. 283, which authorizes a defendant, notwithstanding the plea of title, to shew on the trial that the plaintiff had not possession of, or title to the premises at the time when the cause of action accrued. When the close upon which the trespass is committed is not described by metes and bounds, or otherwise located, in the declaration, and the defendant, under the plea of liberum tenementum, shews title to any lands in the town or ville, he is entitled to recover; and the defendant supposes, that as the statute allows title to be shewn out of the plaintiff, by way of defence, proving title to any lands in the town in a third person, constitutes a good defence. There may be some difficulty on the part of the defendant under the pleadings in this case, in consequence of the' generality of the declaration, to avail himself of the benefit of this proviso, except in the way pursued at the circuit; but it might have been avoided by requiring the premises to be located in the declaration before the justice. The technical rule applicable to the plea of liberum tenementum cannot be applied to this defence, which is given by the statute without any pleading. When the plaintiff declares generally in this action, as in this case, and the defendant pleads the above plea, and the plaintiff replies, traversing it, the defendant sustains his plea by proving title to any land in the town. The proof is pertinent in consequence of the issue thus joined, and is justified by it. To apply this rule, which depends wholly upon the pleadings, to the statutory defence, which is given without pleading, would be arbitrary and unsupported by reason or analogy.
¶2If the defendant had shewn a freehold in himself in the town of Herkimer, the direction of the judge would have been *505eorrect. The plaintiff should have new assigned, which is but giving metes and bounds to the premises upon which the alleged trespass was commited, and is not incompatible with the provisions of the ninth section of the act aforesaid, to wit, that in the trial in the common pleas the plaintiff shall declare for the same cause of action upon which he relied in the justice’s court 2 Chitty, 602. 2 id. 656.
¶3New trial granted, costs to abide the event