dissenting, — I do not concur. In my opinion, the R. S., of 1857, changed the law in relation to costs in actions quare clausum; and there were obvious and strong reasons why it should be changed to avoid vexatious suits.
Burnham v. Ross, and Maxwell v. Pottek.
Memorandum by Kent, J. — I understand that, before the recent revision of the statutes, it was perfectly well settled, iu all actions, whether-real actions, or for trespass quare clausum, or on the case, or in any other form, where, by the plaintiff ’ s showing, in Ms writ and declaration, the title to real estate might be brought in question by defendant, or where such title must be established as the foundation of the claim of the plaintiff, that the District Court, or now, the Supreme Court, had concurrent jurisdiction, although the damages demanded were less than $20 ; and that such cases did fall within the exceptions of the statute giving exclusive jurisdiction to justices of the peace of cases under $20.
It followed that such cases were not those which “ upon rendition of judgment appear to be of the class which should have been originally brought before a justice of the peaceand, therefore, full costs were allowed to the plaintiff in those cases.
*461The question in these eases is not one of jurisdiction strictly, hut of costs. The ad damnum or damages demanded in both cases exceed $20. c. 83, § 1. This Court prima fade has jurisdiction. The statute does not oust jurisdiction of the case, when upon rendition of verdict or final judgment it appears that the real damage recovered is less than $20 ; but it punishes the party for bringing into this Court such a case, by limiting his cost to one quarter of the damages. The very fact that this Court can render judgment in such a case for less than $20, damages, and the one-quarter costs, shows that we have jurisdiction fully, where the damages demanded in the writ are over $20.
The question here, however, is, on what principles are the costs regulated. In all, except the specified cases, when it appears at the rendition of judgment that less than $20 damages are recovered, it is a case which should have been brought before a justice of the peace, and quarter costs only are allowed.
Should these actions have been brought before a justice ? Under the former statute and decisions, it 'is not doubted that they would have been properly brought here, and full costs would be taxed.
Has the statute of 1857, c. 83, § 1, changed the former rule? If it has, it is a very important change. At first view, it looks as if some change was intended, beyond a mere condensation, as the particular cases named in the statute of 1841, c. 116, § 1, are omitted entirely, and the general expression only retained, with a change of tense. In the statute of 1841, the language is, “ where the title to real estate may he in question,” according to the pleadings of either party. In the recent statute, the language is, where the title, according to the pleadings, &c., is in question.
It is contended that the title is not in question until called in question by the defendant; that the declaration is no part of the “pleadings■ ór brief statement,” and that a possibility that the title may be called in question is not the fact intended.
If the writ and declaration are a part of the pleadings, then, strictly speaking, when the plaintiff alleges title to real estate in himself as the foundation of his action, the title is in question.
It will be observed that'the new statute omits “ real actions” with the rest. The only restriction, against bringing real actions before a justice, is now found in the general language of the recent statute. How would it he if, in a real action, a disclaimer only was pleaded and contested and found for plaintiff, as to costs ? The law, and the practice under it, have now been so long established and practiced upon, that unless it clearly appears that a change was intended, I am inclined to hold to the old construction. If the Legislature wish to change it, they can do so by a new statute. I do not think that the omission of specified cases, and the ohange of tense, are sufiicient to justify the great change contended for.