Dodge v. Carpenter

The opinion of the court was delivered by Williams, Ch. J. The plaintiff recovered, in this case, one dollar damages, and the county court allowed him no more cost than damages; to which exceptions were taken by the plaintiff. We have no means of deciding, whether the trespass was wilful and malicous, so as to adjudge to the party full cost. This must be determined by the court, before whom the action is tried. Nor can we say, that the right of title or possession of real estate came in question. The plea of not guilty denies as well the title of the plaintiff as the committing the grievances complained of, and is the proper plea, when the defendants mean to contest either. In this case the right of the plaintiff, either to the land, or the possession, did not come in question, so that we can say the county court should have adjudged to the plaintiff full cost; but the reverse is inferred, both from the facts, as stated, and from their refusal to [511] allow full cost. This is one of those cases, where the action should have been brought before a justice of the peace, so far as any thing appears to us. The county court, before whom the cause was tried, and who had the whole subject before them, did not adjudge that the trespass was wilful and malicious, or that the plaintiff was subjected to the proof of his title, or possession. We can discover no error in their adjudication, and their judgment is affirmed.