
    BUDD v. STILLE.
    In trespass quare clausum fregit.
    
    Question as to costs.
    This cause was tried at the Cape May Circuit, before Justice Ford, and a verdict rendered for the plaintiff, for six cents damages.
    
      L. Q. C. Elmer,
    
    in behalf of Mr. Ellet attorney for plaintiff, moved for judgment on the verdict, with costs.
    The Judge by request, declined at the circuit, giving the usual certificate that the title came in question, and recommended that the application be made at bar.
    The act of the legislature, on this subject, must be considered as applicable to cases which cannot be tried before a Justice of the Peace, before whom the only question to be tried is the fact of possession. 6 Halst. 62, 63, Gregory v. Kanouse. The term title is to be taken in a strictly technical sense. It involves the justa causa possessionis.
    
    Another question arises. Is it requisite for the Judge to give the certificate instanter, at the trial? The statute Rev. Laws, 666, should not be taken literally.
    It may be given at the next term or subsequent convenient time. 2 Barn and Cress. 580 : 9 Eng. G. Law R. 186 ; Ih. 202. 2 Barn, and Ores, 621. Held that the words “ the judge at the trial of the cause” means the Judge who tried the cause.
    The pleadings in this case set up a title; and where a party pleads title, the statute, Rev. Laws, 309, does not apply.
    
      D. Elmer, contra.
    Application for the certificate should be made to the Judge who tried the cause, and not at bar. The Court is referred to Rev. Laws 309; Ih. 666. To recover costs in this case, the Judge’s certificate upon record, must be produ--. ced. The title intended by the statute, is more than possession, or matter pleaded. The certificate should be made at the trial. 7 Hals. 177, Hunt v. Morris. The act of 1820, Rev. L. 666, refers to actions of trespass only.
    The words “judge at the trial,” mean the place of trial. Wilson 221. The title may come in question at the trial by evidence or pleading.
    
      
      L. Q. G. Elmer in reply,
    cited 2 Bao. Ab. Costs, B. 38, Lon. Ed.
    
    The act of 1820 Rev. Laws 666, repeals the clauses in Pat. Rev. sec. 4, 5, 6.
   Horrblower, C. J.

The plea, liberum tenementum puts the title in question; and the jury having passed thereon, the plaintiff is entitled to costs.

Ford, J.

I have no doubt of the plaintiffs’ right to costs. By the plea, issue, and verdict, the title is directly at issue. If the certificate were necessary, I think it may now be given, but it is not necessary.

Ryersor, J.

In this case there are two pleas, one of which puts the title in question. But even on the general issue pleaded, the title as offered to be set up here, entitles the plaintiff to costs. The question was one which a Justice of the Peace could not try.

I had entertained an opinion, from the English practice, that a certificate may be given at any time; but perhaps our statute was intended to alter that rule.

Costs allowed.

D. Elmer, applied for and obtained a rule to shew cause, why a new trial should not be granted, the postea being brought in at this term.

Leave to amend the replication on payment of costs, was also granted.  