The plaintiff sued the defendants in a plea of trespass before a justice of the .peace in Monroe county for • an alleged injury to land.

The declaration averred the title of the land to be in the plaintiff, describing it.

On the return-day the defendants appeared, and pleaded to the declaration the general issue, and gave notice that the land upon which the alleged trespasses were committed was the close or freehold of the defendant Adolphus Labeau, and that the acts done thereon complained of were the lawful acts of the defendants. The defendants also accompanied their plea and notice with the bond required by statute, rendering it necessary in such case for the justice to certify the issue thus found to the circuit court for the county for trial.

*84The case was subsequently tried in the Monroe circuit, before a jury, upon the issue found, and upon the trial the plaintiff, in support of his claim, introduced testimony tending to show title in fee in himself to the premises where the alleged trespass was committed, and, as a part of his proofs, introduced a warranty deed running to himself of the same. It also appeared in the plaintiff’s testimony that Isaac Dene had a life-estate in the land for himself and wife, and that the plaintiff swore he was in possession of the land, working it on shares for Mrs. Dene, who also lived upon the same. The defendant was also sworn in the case, and gave testimony in relation to the alleged trespass. The court held that the property injured was the common property of the plaintiff and Mrs. Dene; that plaintiff was her tenantj and, arresting the proofs when this appeared, directed a verdict for the defendants; and thereafter judgment was entered in due form for the defendants, and against the plaintiff, for costs, to be taxed. This judgment- was entered on the eighteenth of September, 1885, and an order was at the time granted extending time for plaintiff to enter motion for a new trial.

On the twenty-fifth of September the circuit judge made and filed, under the statute, a certificate that the title to lands did not come in question upon the trial.

• To this certificate, and the entry thereof, the defendants objected for the reason that the title to land did come in question upon the trial, and that the entry of the certificate is not supported by the pleadings and proofs in the case. This objection was filed on the fifth day of November, 1885, and on the twenty-seventh of the same month the circuit judge ordered the judgment entered on the verdict to be vacated, so far as relates to costs, and modified so as to give costs to plaintiff.

This was error, and to correct which the defendants bring the case into this Court.

The circuit judge took his final action in the case under the impression, undoubtedly, that unless the defendants’ title of which he gave notice was necessarily in the case, or was *85•successfully interposed upon the trial, the defendants, even though they prevailed in the suit, would not be entitled to their costs; but this is not the correct construction of the statute. See How. Stat. § 6897.1

The declaration averred title in fee and possession of the locus in-quo in the plaintiff, and gave a descz’iption of the land. The defendants denied this title, and expressly averred that the freehold was in one of the defendants, and that both entered upon the pz’eznises in question lawfully and by lawful right. It is difficult to see how the title could bo znoi'e directly put in issue under the pleadings.

Upon the trial the plaintiff offered in evidence the conveyance, with warranty, under which he claimed. This was properly done, and the evidence had to be passed upon by the jury under proper instructions fz’om the court, and thus was brought in issue, upon both the pleadings and the pi'oofs, the title of the plaintiff to the land upon which the injury is alleged to have been committed, and the judge’s certificate holding otherwise must be vacated, and judgment re-entered in the circuit court allowing defendants to recover their costs. The statute is imperative, zznder the cii’cumstances.2

Defendants will also recover their costs in this Court.