Heaton v. Ferris — 1 Johns. 146

Majority

p. 146

Heaton against Ferris and Ferris.

Headnote

$n trespass quare clausimi fregit, the defendant pleaded in justification a right of way over the land of the plaintiff, and a verdict was given for the plaintiff foi- six cents. The plaintiff’ is entitled to full costs, under the statute. The certificate of tile judge need not be given at the trial, it is sufficient if it be gl ven after-wards, even after the clerk has taxed the costs.

THIS was- an action of trespass for breaking and entering theplaintiff fs close, treading downthe grass, &c.— The defendants pleaded the general issue, and two special pleas of justification,-one of a right to a common highway, and the other, a right to a private way. The plaintiff replied to the special pléas, traversing the right of way set up in each, and the defendants rejoined, and issues were taken thereon. The cause was tried at the West Chester circuit, in June, 1804, before Mr. Justice Livingston, and a verdict was found for the plaintiff for six cents damages. On this verdict a judgment was entered up by the attorney of the plaintiff, and after due notice of the taxation of the costs,,full costs were taxed on the 13th day of January last, by the clerk of this court, though the taxation was objected to, at the time, by the attorney of the defendants, because the judge before whom the cause was tried, had not given a certificate, to entitle the plaintiff to full costs. The plaintiff, afterwards, on the 29th day of January last, obtained a certificate from the judge who

p. 147

tried the cause, that the freehold or title came 'in question.

Hoffman, in behalf of the defendants,

now moved thatthe taxation of cost - should be vacated,and that the defendants should have their costs taxed against the plaintiff, and execution therefor, or, if the defendants were not entitled to •costs, that, then, the plaintiff should be allowed no more costs than damages. He cited 2 Caines, 220, Farrington v. Remite. The freehold in the land was admitted to be in the plaintiff. The defendants claim only a right by prescription, of passing and repassing over the land of the plaintiff. A justification of a mere right of way over the freehold of the plaintiff did not bring the title into question.

Ftnott, contra.

The words of the statute,^[1] are, “ that in all actions of trespass, &c. wherein the judge, at the trial of the cause, shall not find and certify under his hand upon the back of the record, <kc. that the freehold or title of land mentioned in the plainriff’s declaration was chiefly in question, the plaintiff, in case the jury shall find the damages to be under the value of five dollars, shall recover no more costs of suit, than the damages so found shall amount to.” The right of way is a title in relation to land. The general issue itself puts the title in question ; but the plaintiff, in his replication, has directly traversed, and taken issue on the plea of title. The case of Farrington v. Rennie,^[2] having been decided since the trial of this cause, it ought not to infinencc the decision in the present case. The statute did not require that the certificate should be given at the trial, but merely that the judge

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who presided at the trial, should give the certificate, which might be done afterwards.

Harison, in reply.

If the general issue put the freehold or title in question, the provision in the act was nugatory. A'claim to a mere right of way did not bring the freehold or title to land in question, within the meaning of the act. Costs are stricti juris, and not to be allowed, unless the party shows that he is clearly within the provisions of the statute.

In this case, the title to land came in question, so ás to entitle the plaintiff to full costs under the act, and the certificate was properly granted.

Rule refused.