Farrington v. Rennie — 1 Cole. & Cai. Cas. 393

Majority

p. 393

Daniel Farrington v. Samuel Rennie.

Headnote

IN trespass de bonis asportatis the defendant pleaded not guilty, and gave notice that the locus in quo was his freehold. At the trial, 17 dollars only were recovered. The plaintiff, however, contended he was "entitled to full costs, as it appeared from the notice, that the freehold had come in question.

delivered by Livingston, J. By the fourth section of the £< act to reduce certain laws, concerning costs, into one statute,”^[1] it is enacted, that, “if in any personal action prosecuted in this “ court, the plaintiff shall not recover above the sum “ of fifty dollars, besides costs, he shall not recover “ any costs, but shall pay costs to the defendant to “ be taxed.” “ Provided, however,” that nothing therein contained “ shall extend to any action where “ the freehold or title to land shall in any wise come “ in question.4’ In this case we think it does not appear that it did.

Where liberum tenerneníum is put on the record in form of a plea, it dees not necessarily follow, that the title will come into question. . Vhe plaintiff, by his replication, may admit that fact, and yet have a right to recover. Still less inevitable is this conclusion,,

* Rev. Laws, 529.

p. 394

where, subjoined to the plea, is a notice of the kind given, to which a party cannot reply, and the matter of which may be altogether abandoned, or not insisted on at the trial. Upon the whole, instead of looking at the pleadings, and relying on them how costs in these actions are to be disposed of, we think it best in future, in all cases of trial, to require a cer-¡ tificate of the judge who presided, “ that the freehold, “ or title to lands and tenements, did come in ques- “ tian,” as the best and only evidence of costs being due under this proviso. Although the act be silent as to any certificate, we think it a mode of ascertaining the fact, the most free of objection, and not so liable to mistakes, as conclusions drawn from a reference to the pleadings. In this case we are of opinion that the plaintiff pay costs to the defendant.