Farrington v. Rennie

2 Cai. Cas. 220, 1 Cole. & Cai. Cas. 393

• Court: New York Supreme Court
• Decided: November 15, 1804
• Status: Published

Opinion

Per Curiam.

By the fourth section of the “act to reduce certain laws concerning costs, into one statute,” 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 anywise come in question.” In this case, we think it does not appear that it did.

Where liberum icnementum is put on the record in form of a plea, it does not necessarily follow that the title will come in question. The plaintiff by his replication may admit that fact, and yet have a right to recover. Still less inevitable is this conclusion, 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 certificate of the judge who presided, “that the freehold, or title to lands and tenements, did come in question,” 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.

Costs to the defendant.