
    Rogers against M’Gregor.
    ju trespass (¡ware clausum fregit, where the title to land cornos in pkintffi’is on-titled to single he^ecov^less than $50 damffes"
    In trespass quare clausum fregit in this Court, the plaintiff at the Circuit recovered only 132 50: but the Circuit _ .. , „ , , , . , . , . . , Judge certified that the title to land came in question; and
    
      E. Cowen, for the plaintiff, moved for single costs.
    J. B. Lathorp, contra,
    said the action might have been brought in a Justice’s Court; and submitted whether it was not within the statute, sess. 46, ch. 238, s. 33, providing that if the plaintiff in any suit which may be brought in any court of record shall fail to recover a sum exceeding ¡$50, he shall not recover any costs of the defendant, provided the suit so brought might have been commenced in a Justice’s Court. He said a Justice had jurisdiction, and had the suit been prosecuted in a Justice’s Court, the defendant could only oust him of jurisdiction by pleading title specially. This he might not have done.
   Curia.

We must take the case as it stood at the Circuit without inquiring what might possibly have been the defendant’s course before a Justice, had the suit been brought hi a Justice’s Court. Of this particular cause, which in fact did involve the title to lands, a Justice had no jurisdiction. The case, as made out at the trial, must be the criterion.

Motion granted  