No question is raised in the report of the Judge, as to the form of the verdict. It is for the plaintiff, on all the points in controversy, and enough is found to entitle him to judgment, unless the verdict is set aside on account of other objections presented in the case.
Whether the cow was under lease to the witness, Rogers, or whether he was a mere keeper of her for the plaintiff, was in our judgment a question of fact properly left to the jury.
With regard to the competency of Anderson Brewer, as a witness for the defendant, if when the defendant took" the cow, he had been merely passive, he might have been admitted, according to the case of Lothrop v. Muzzy, 5 Greenl. 450, cited in the argument. But the case finds that the witness turned out the cow to the defendant. By this act a warranty was implied, that she was: his property. It was decided that a vender was thus liable, in the case of Hale v. Smith, 6 Greenl. 416 ; and we are of opinion, that this case comes within the principle there settled. Being bound therefore, under his implied warranty, to indemnify the defendant, he had a direct interest in his favor. A verdict against the defendant, would be evidence against the witness offered. He might also be liable to the plaintiff, if she failed here, in consequence of his having turned out her cow. But the question of property would be open in an action between her and the witness, not affected by a verdict against her between these parties* He might prevail in such an action ; so that his interest in this case, arising from his liability to her, is not certain and direct, as it is in favor of the defendant. We hold the witness therefore to have been incompetent, and rightfully rejected.
It is urged that the verdict, being against evidence, ought not to be sustained. It may have been made to appear that the cow came from another, transferred by the husband of the plaintiff to Anderson Brewer, by the bill of sale of July, 1826. That was made for the nominal consideration of one dollar ; but the real consideration therein expressed was, that Anderson should maintain his father and his mother, the plaintiff, during their lives and the life of the survivor. The father died the same year. If Anderson, as the case finds, became insolvent, and unable to support the plaintiff, it was but an act of justice in him to make over to *54her a small part of the property, charged with her maintenance. She was cestui que trust of the property, as far .as it was wanted for her support. If the cow ever was Anderson's, it appears that long before she was turned out to the defendant, he permitted her to be taken away as his mother’s property, upon her being claimed as such. She is after all a sufferer by his failure ; and it would be great injustice to permit a creditor of his to wrest from her the trifling provision he was able to make for her support. We regard the verdict upon this point clearly in accordance .with the justice of the case.
By the act, in addition to an act, regulating judicial process and proceedings, statute of 1822, ch. 186, $ 2. it is provided, that when in an action of replevin, part of the goods replevied are found to be the property of the plaintiff) and part of the defendant, and the value found for the plaintiff, does not exceed twenty dollars, he shall recover cost only to the amount of one fourth of the value. It has been the policy of the law to limit and restrict costs, in favor of the plaintiff, where an action is originally brought in the Common Pleas, for property of a less value than twenty dollars. And such is the general law, where debt or damage is recovered. St at. of 1821, ch. 59, § 30. Cases of replevin do not strictly fall within the limitation there expressed ; bat the same rule is very strongly implied in the statute of 1822. Jurisdiction having been since given to Justices of the Peace in actions of replevin, for property not exceeding the value of twenty dollars, statute of 1829, ch. 443, the plaintiff may elect a tribunal, which will subject him to no peril as to costs. It is one attended with less expense to suitors, and to which they can at all times have access. There is the same reason for protecting its exercise, by limiting costs, if other jurisdictions are sought, in actions of replevin for property of a value not exceeding twenty dollars, as exists in other cases. And viewing the statutes together, bearing upon this point, we are satisfied that the Legislature must have so intended. The late Chief Justice of this Court makes an intimation to the same effect in Ridlon v. Emery, 6 Greenl. 261. And we think that the plaintiff cannot be allowed costs, exceeding one fourth part of the value of the property.
Judgment on the verdict.