Bennet v. Rathbun — 17 Johns. 37

Majority

p. 40

*Bennet against Rathbun.

Headnote

Where an action of trespass, quo.rt clausum fregit, is commenced before a justice of the peace, and the defendant puts in a plea of title in the locus in quo, and the plaintiff then commences his action for the same trespass in the Court of €. P. of the county in which the trespass was committed, which the defendant, by writ of habeas corpus, removes into this court, and the plaintiff, ⅜>11 the trial, recovers damages, he is entitled to double costs, under the 7th recitan of the act of the 5th of April, 1813, (sess. 36. ch. 53. 1 N. R. L. 390.J it being considered, after the removal to this court, as the same action originally commenced in the court below.

THIS was an action of trespass, quare clausum fregit, originally commenced before a justice of the peace, in which the defendant pleaded title to the locus in quo. The plaintiff then commenced his action in the Court of C. P. of Otsego county for the same trespass; and the defendant removed the cause by habeas corpus, to this court, and it was tried at the Otsego circuit, where a verdict was found for the plaintiff, for five dollars damages.

Brown, for the plaintiff,

moved for double costs, under the act, sess. 36. ch. 53. s. 7. (1 N. R. L. 390.)^[1]

Campbell, contra.

The 7th section of the act for the recovery of debts to the value of 25 dollars provides, that where an action of trespass on land is brought before a justice of the peace, and the defendant puts in a plea of title, it shall be reduced to writing, &c., and the plaintiff may then bring his action in the Court of C. P. of the county ; “ and if such plaintiff shall recover any damages in such action, the defendant shall be liable to pay to such plaintiff double costs.” Although the cause be removed into this court by habeas corpus, it is still the same action, and the plea of title put in before the justice will, on the trial of the cause, be conclusive evidence that the defendant relied on his title. A different construction would lead to great injustice ; for, unless we consider it as a continuance of the same action from the court below, the plaintiff could not recover even single costs, unless the title actually came in question. We are of opinion, that the plaintiff is entitled to double costs.

Motion granted.