delivered the opinion of the court.

On the first ground it is only necessary to observe, that as the plea is not produced, and was not filed, it is impossible to controvert the decision of the circuit court.

The act of the legislature which gives to the circuit court summary jurisdiction, expressly excepts all such cases as involve the title to lands. On this ground, discounts similar to the one in question, have invariably been overruled.

To obviate hereafter the difficulties, which are said to have been experienced in this case, it is suggested that when a defendant has a bona fide defence involving a title to land, that on application to the circuit court, an order requiring the plaintiff to declare, might be obtained, in which case a defendant might avail himself of such defence.

The motion in this case must however be refused..