Arnold v. Kellogg

The question in this case is the same in substance, as was decided in Bishop v. Seeley, 18 Conn. R., 389, and must be governed by that decision. To the doctrine of that case we expressed our adherence in the late case of Mansfield v. Church, 21 Conn. R., 73.

There must be some limit to the exception'as to costs3 contained in the 152d section of the act for the regulation of civil actions, or, as was said in the case of Bishop v. Seeley, a party would be entitled to full costs in an action of slander, or assault and battery, where the title to land should incidentally come in question on the trial; which we presume *250no one would claim to have been intended ; and wherever the line is drawn, there will arise cases on each side of it, so near each other, as to render it difficult to give any other reason for giving full costs in one, and refusing to do so in the other, than that such is the rule, founded on decisions of the highest court. Where there is no plea or notice of title, there is no direct issue upon the question of title, as there is under a plea of title ; and, if there is a notice that the defendant’s title to the land in controversy will be relied upon, the case, if it turns and is decided on that question, falls within the letter and spirit of the exception. But if we go further, and attempt to make the dividing line one of exact justice in every case, it would be impossible to fix any intelligible limitation to the exception. And to give full costs in every case in which a question of title may arise, without reference to the amount of damages recovered, we are satisfied was not the intention of the legislature. We are of opinion therefore, that there is no error in the judgment complained of.

In this opinion, the other judges, Waite and Storrs, concurred.

Judgment affirmed.