By the Court,
Savage, Ch. J.The exception in the statute is general, if in any action, freehold or title to lands in any wise comes in question, the plaintiff is not restricted to common pleas costs, though his recovery be less than $250. The plaintiff on the trial was compelled to shew his eviction, and, of course, title out of the defendant. Besides, here the judge has certified the fact, that the title to lands did come in question, and the court will not look beyond the certificate. Whether the title came in question, does not depend upon the state of the pleadings, but upon what transpires at the trial.
Motion denied.*
In Jackson v. Randall, (11 Johns. R. 405,) the court say, “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 evidence on that subject.”