majority">Bell, J.

The act <! for the limitation of actions and for the preventing of vexatious suits,” provides that “ in all “actions of trespass quare clausum fregit, where the title “of real estate is not in-question, if the damages found or “assessed by the jury do not amount to forty shillings, the “court may, if they think proper, allow only such sum in “costs as they shall think proper, not exceeding the dam- “ ages assessed by the jury.”(1) It is very clear that, by , • , , J this statute, courts are vested with some discretionary power in relation to costs in actions of trespass quare clausum fregit, where the plaintiff recovers by the verdict of a jury a sum in damages less than six dollars and sixty-six cents; but whether this discretionary power is limited in such cases within the amount of damages found by the jury, or whether it is a general discretionary power over the amount of costs, *15without regard to the amount of damages found under six , dollars and sixty-six cents, is the question raised by the present motion. *

Jl, Chase, for the plaintiff.A. Rogers, for the defendants.

If the statute does not imperatively require of the court to limit the plaintiff’s costs to the amount of damages recovered, this would seem to be a case where the court would think the circumstances suchas did not require their interference in the limitation of the costs. For it appears by the verdict that the defendants unlawfully violated the right of domestic privacy and security of habitation® which the laws have always manifested a scrupulous anxiety to protect.

From the words of the statute it seems at first view somewhat ambiguous, whether the legislature intended to vest in the courts a discretionary power to determine whether they would in such cases restrict the costs at all, 5r whether their discretionary power as to costs extended only to the amount of the costs to be taxed, limited in all cases within the amount of the damages found by the verdict of the jury ; but upon consideration we are of opinion that the words in the statute, •" not exceeding the damages assessed by the jury,” relate to and qualify the whole of the preceding part of the sentence, which relates to the limitation of costs. From which construction it follows that the court cannot in this case allow the plaintiff to recover a sum in costs greater than the damages found by the jury; and they see mo reason in the case for limiting it to a smaller sum.

VV hether the title to real estate came in question in such actions, may appear from the pleadings or from the evidence given on the trial.

In this case it appears from the pleadings that the title of real estate was not in question.

The plaintiff must be limited in his costs to the sum of five dollars.*

statute of June 16,1791. |6. jnul

Richardson, C. J., having been of counsel, did not sit in this cause.

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