
    Daniel Fountain vs. Frederick Baits.
    In trespass, costs must be paid to dant, where the plaintiff does not recover 35 dollars, where the in question, certificate6 gtven of the wilfulness & malice of the defendant.
    This was Enaction of trespass, in which the plaintiff recovered six cents damages. He applied for a certificate the trespass was wilful and malicious. This certifiCate was denied ; and now the question was, Whether the tiff must pay the Defendant’s costs, or whether he reG0V6YS ag much costs as damages ? °
   Riker, Recorder.

The 5th section of the act concern-costs, 1 vol. Rev. Laws, p. 344, gives costs to the dewhen the plaintiff does not recover above $25.— There is a saving as to certain actions, and amongst others, those concerning the freehold, or title to lands. In those cages the plaintiff is entitled to full costs, r

The 7th section declares,that in all actions of trespass not provided for by the 5th section, the plaintiff shall have full costs, provided the Court shall certify that the trespass appeared to be wilful and malicious. A doubt has been raised, whether the court could in any case certify, except where the freehold or title came in question, as that is the only case of trespass not,provided for by the 5th section. Butn upon examining the 5th and 7th sections carefully, and expounding both separately and together, the true construction seems to be; in all cases of trespass where the freehold or title is concerned, the plaintiff, if he recover any thing, recovers full costs. If the freehold, or title, does not come in question, still if the trespass be wilful, and malicious, the Court may certify, and that will give full costs.

In all other cases of trespa°ss, that is, where the freehold or title is not concerned, and where the Court does not certify that the trespass is wilful and malicious, the plaintiff must pay costs to the defendant if he does not recover above $25. This rule is fully established in the Supreme Court, in the case of Jackson v. Randall, 11 405. It is there settled in that Court, that if the plaintiff does not recover above $50, he must pay costs, unless the freehold or title comes in question ; and the Judges ficate is the proper and legal evidence of the fact. Etvide Sing v. Anin, 10 Johns. Rep. 302.

Ketchum & Anthon, for Plaintiff.

Pinckney & Craig, for Defendant.

In this case, the freehold or title to the land not coming in question, and the Court not having certified as to the wilfulness and malice of the defendant, and the plaintiff not having recovered above $25, he must pay costs to the defendant to be taxed.

Note.—The English statutes and ours differ on the subject of costs. There the plaintiff never pays costs if he recovers, though in many cases he only recovers as much costs as damages, 2 Bac. 35. Tit. Costs, letter B. With us he pays costs in many cases, if he does not recover above a certain amount. From the readings upon the several statutes of costs in Gilb. Hist. Com. Pleas, 263. 2 Bac. Ab. 36, 37, let. B. tit. Costs, it seems that the Judges can certify only where the freehold or title may come in question, as for trespass on lands, not for a trespass to goods.  