
    Jackson against Randall.
    ALBANY,
    August, 1814.
    mver above toihe dEfe* Silt,, 13?Jless ifee íírechold title ¿o Üaaáí coosea in yues¿1015. in an action of trespass fc>? tnesm " 'Profit, ry ;7 rj_,.eiordinarily, 1 ^ nmwion°~"
    *,£ ?r p.ihf i-™laid m tbi <3e= mise, the- ¿¡eafaputeWütíe S! ;to ^afntW sello ^ aÍ n™e°?idbi4t’ titold™¿¡¡¿1’ to ”ef'rp™s^ follows as a meeess u-y conraqnencp to ike recovery is thV^Sndaí anyn0titte i3ai|-$le j¡tpJ 77S-J tried, is tfe »"?•"•. evtCiííñCfi ©Í' fact, wiiftiii.eometiFcjiw:-
    THIS was an action of trespass for mesas profits* The amount of the recovery being only forty-nine dollars, the defendant claimed a right to recover costs: and Campbell, for the defendant, now applied to have them set off against recovered» '
    
      Cady, contra»
   Per Curiam.

Under the act soneemmg costs, as it previous to the last revision of law s, if the plaintiff in an action of trespass, recovered above five dollars, he recovered costs» (K. & R. Ed. vol. 1. 530. sess. 24. c. 170. s. 6.) But mow, unless the recovery is above fifty dollars, the plaintiff muss pay costs, unless the freehold or title to the land comes in question. (1 N. R. L. 243. sess. 36. c. 96. s. 4.) It does not nex / eessanly follow, from the form of the pleadings, or the nature of the inquiry, upon the trial of an action for mesne profits, that the title or freehold did come in question. Ordinarily, it is a mere question of damages. If the plaintiff claims damages for the occupation previous to the time laid in the demise, the defendant may dispute the title anterior to that time; and should such a case arise, it would, undoubtedly, entitle the plaintiff to recover costs. But when the plaintiff only seeks to recover , . . r J from the time of the demise laid m the declaration, the right to „ , mesne profits follows as a necessary consequence of the reco very in ejectment, and the defendant cannot set up a title in bar, even though he may .clearly have a better one than the plaintiff. (2 Johns. Rep. 3Í1.) If the plaintiff’s title cannot be dis» puted, It cannot be said that the title comes in question, within the sense of the term, as used in the statute, which must mean that it was controverted or denied by the defendant. This case must, therefore, fall under the general rule applicable to ac-lions of trespass. The statute does not point out the mode in which it is to be ascertained, whether the title did come in question. But it has been decided by this court, that the certificate of the judge who tried the cause, was the proper evi= dence on that subject. (2 Caines’ Rep. 220.) No such, eerü’á cate having been given in this case, the defendant is entitled t costs, and his right to have them set off against the damages recovered, follows as matter of course.

Motion granted,  