
    Sing against Annin.
    ALBANY,
    August, 1813.
    In an action of %£SjMcLnswñ fregit, bro’t common pleas, title' to land ?nd questio™,6 the plaintiff recovered damages to the dSu'rf it was sui'tbeiiig^cog6 nisahie before peace,0e°thee de?” the1 act (sess. 24. c. I/O. s, 5.) was entitled to re-against18 “the8 plaintiff.
    And where, on the report of referees being confirmed by the court, the plaintiff,, without saying any thing to the court as to the question of costs, entered a rule for judgment for one dollar damages^ and his costs of suit, and had his costs regularly taxed and a record made up and filed, on which execution was issued, and the damages and costs collected and paid over to the plaintiff; and on the return of the execution, at a subsequent term, the court, on application of the defendant, adjudged costs in his favour against the plaintiff, on which a new record was made up, in which the judgment was entered as of September term, 1810, when the report was confirmed for the costs, when, in fact, the judgment in favour of the defendant for the costs was given in J\layy 1811; it was held that the entry of the judgment by the plaintiff for the costs, without the knowledge or assent of the court, being irregular, the court of C. P. had power to set it aside; and that the entry of the judgment for costs in favour of the defendant, as of September term, 1810, could not be alleged as error, as the judgment for costs related back to the term in which judgment was given ofr the report of the referees.
    IN ERROR, from the court of common pleas of Westchester county. Sing brought an action of trespass quare clausum fregit, an¿ for treading down the grass, destroying his fences, &c. against Annin, in the court below. The defendant pleaded not guilty, with notice that she should give in evidence that the fences were insufficient, &c.' It appeared from the record produced, that by agreement of the parties, the cause, in May term, 1810, was „ , . referred under a rule of the court to three referees, who, m September term, 1810, reported that the plaintiff had sustained damages to the amount of one dollar; that the court below gave judgment, in the same term, that the report stand confirmed, and the plaintiff recover against the defendant his damages so awarded, of one dollar, and because the plaintiff had recovered less than twenty-five dollars, and the freehold or title of land had not e e come in question, it was adjudged, according to the statute in such case made and provided, that the defendant recover against the plaintiff her costs on occasion of defending the suit, and that she have execution therefor, which costs were taxed at 42 dollars and 85 cents, See.
    
    It appeared from the case in error, that the referees, in their report, certified that the trespass did not appear to them to be wilful or malicious, nor did the title to land come in question.
    After the report was read and confirmed by the court, the plaintiff’s attorney entered a rule, as of course, without any opposition by the defendant, or argument before the court, whose attention was not called to the question of costs, “ That the plaintiff recover the said damages, and also his costs and charges by him about his suit in that behalf expended,” Sec. The plaintiff, before the next term, had the costs regularly taxed, and the record of the judgment filed, on which execution ivas issued, and the amount of the damages and costs was collected of the defendant- and paid over to the plaintiff. On the return of the execution, the defendant obtained an order from the court to stay proceedings, until the next December term, in order that she might apply to the court to have the costs adjudged to her. And the court, on motion of the defendant, at the May term after, adjudged to her the costs and charges in defending the suit; notwithstanding the previous judgment for the damages and costs remained unreversed. The defendant, after the costs were so adjudged to her, caused a new record to be made up in the cause, and continued the proceedings down to September term, 1810, at which time it appeared by the record that the costs were adjudged in favour of the defendant, though, in truth, they were not so adjudged until the term of May, 1811, and no continuances were entered on the record from September term, 1810, to May term, 1811.
    The cause wTas submitted to the court without argument.
   Per Curiam.

1. The court below was correct in awarding costs to the defendant. The 5th section of the act of 1801 (sess. 24. c. 170.) gives costs to the defendant in suits in the common pleas, where the plaintiff does not recover 25 dollars, unless in certain specified cases, and among others, in actions “ concerning any freehold or title to land.” The suit below was for trespass on land, but it did not concern the freehold or title, nor did the plea bring either in question. The suit was cognisable by a justice. 2. The entry of the first judgment for costs, in favour of the plaintiff, was entered by the plaintiff without the knowledge or assent .of the court, and was irregular; and the court had power, and properly exercised that power, in setting that judgment aside. 3. The~ entry of The judgment for costs to the defendant as of &ptember~ I 810, is not to be alleged as error, for by relation, the judgment for costs was rendered as of the term in which judgment was given upon the report.

Judgment affirmed.  