Wickham vs. Seely, 18 Wend. 341

By the Court, Cowen, J. The title was not in any wise brought in question at the trial. The plea of leave and license admitted it. To entitle the plaintiff to costs, he should have sued before a justice, or have gone to the common pleas, where he might, had the fact appeared, have obtained a certificate or asked the jury to find that the trespass was wilful and malicious. (2 R. S. 613, § 3, sub. 2. 10 Wendell, 565. 2 R. S. 614, 615, § 12, sub. 2.) [651] [652] If the plaintiff’s claim for costs is to be maintained, it must be on the ground, that he has no remedy in a justice’s court.

In a case of mere constructive possession like this, if the defendant be sued before a justice, he may plead not guilty, which would probably involve a denial of title, and put the plaintiff to show his possession by his deed. (Hubbell v. Rochester, 8 Cowen, 115.) In such a case, the justice is directed to dismiss the cause with costs. (2 R. S. 237, § 63.) This

section is, that if it appear by the plaintiff’s own showing that title is in question, which the defendant shall dispute, the justice shall dismiss the cause. If this case be within that section, as it probably is, the defendant might have, tantalized the plaintiff, by defeating him in a justice’s court, and then, when sued in a court of record, might have changed his ground to the license, and got costs for want of $50 damages. He would not, perhaps, be bound to plead title, and give the plaintiff the usual remedy in the court of common pleas, within 1 R. S. 236, 237, § 59 to 62.

The only consequence of omitting a plea of title, is to shut out his own evidence drawing the title in question, (§ 62.) It is hard for the’ plaintiff to be thus left in the defendant’s power. It is obvious that cases may arise in which he will be deprived of all substantial remedy. But the statute of costs is without exception, that if the plaintiff do not recover over $50 in trespass, he shall not only be denied costs, but pay them to the defendant. (2 R.

S. 613, 614, 615, § 3, sub. 2, § 8, and § 16.) To entitle the plaintiff to costs, there should have been an express or implied exception of a case wherein the plaintiff is subjected to a dismissal of his cause in a justice’s court, by reason that he himself shows title, to be in question. We have seen that there is no express exception. Does it follow, that there is one implied from the circumstance that there is no certain remedy in a justice’s court ? The statutes of costs have in general aimed, in such a case, to give them to the plaintiff by express provision. In some cases they have failed.

On a recovery in ejectment, the plaintiff, in order to get his damages, must proceed by suggestion; in which case, he recovers his costs as in other actions. (2 R. S. 310, 311, § 43 to 53.) Here the statute is peremptory, and takes away all remedy in any other court absolutely. Yet, if the plaintiff do not recover more than $50 damages, he gets no costs, but must pay costs. (Broughton v. Wellington, 10 Wendell, 566.) That ease is decisive. If was stronger for the plaintiff than .this. There was no remedy but by suggestion. No suit would lie. Here a suit will lie.

It might- prove successful before a justice, if the defendant would be fair. A suit would lie, we have seen, in the common pleas. Both were uncertain remedies, it is true. But in Broughton v. Wellington, there was no other remedy, certain or uncertain. Beading the opinion of Sutherland, J., in that case, we collect this general rule: Costs cannot be allowed here, merely because there is no remedy elsewhere; but they must, in all cases, be expressly given by statute. The defendant, and not the plaintiff, is entitled to costs. Motion denied.