Gilbert v. Kennedy , 2 Mich. N.P. 19 ( 1870 )

Opinion by

Campbell, C. J.

Kennedy sued Gilbert before a Justice, for trespass guare clausum fregit, and the suit was removed to the Circuit Court on pica of title. The declaration laid the trespass with a continúen Jo, on the 24th of June, 1868, and various other times prior to August 5, 1868, the date of the commencement of suit. A general question was asked, whether Gilbert put any cattle on the premises during the summer of 1868. This was objected to unless confined within the period named, but the objection was overruled and testimony given showing the putting of cattle on the premises in the end of April, the driving them off by Kennedy and their being put back again. A question was then asked, “ How long did they remain therehut objected to as not within the declaration. The objection was overruled and proof submitted of cattle put and found there in May. June and July, and their continuance. It was urged as error that having laid the trespass with a continucndo, the plaintiff should uot prove any prior trespass, and then prove others either within or without the time, hut .must elect to prove one anterior or confine himself within the time alleged.

Ifeld, that the rule has long been settled that under such a deflation the plaintiff must elect, and having proved a trespass before the period iu the continucndo, must go no further. The rule is, that he is to he confined not merely to recovering damages for, hut to proving no trespass but the one he elects.

In regard to the question of costs raised, the Court held that if witnesses arc made to attend in good faith, and there is reasonable proof pf their necessity, the fact that, they are not called will not prevent taxation for their attendance where the party had reason from the state of the pleadings to believe he required them.

Held, that11 double costs” under the statute must be construed to mean single costs and an addition of one-half, .when there is nothing to qualify the phrase. As they belong under the statute to the party, and not to the officers or witnesses, the statute is of a penal character and should receive no larger construction than it fairly requires.