Page:North Dakota Reports (vol. 3).pdf/400

 the Supreme Court of Tennessee held that the costs of ejectment could be recovered, and that this meant “the legal and proper costs taxed in the action of ejectment, not including counsel fees or other expenses incurred by the plaintiff in the prosecution of the suit.” The development of the doctrine we have been considering may be traced in the cases cited below. Baron v. Abell, 3 Johns. 481; Aslin v. Parkin, 2 Burrows, 665; Delatouche v. Chubb, 1 N. J. Law, 466; Hunt v. O'Neill, 44 N. J. Law, 566. Also, Sedg. & W. Tr. Title Land, § 679, and cases there cited. The result is that the special verdict for $500, as and for plaintiffs’ attorneys’ fees in this action cannot stand, and the evidence upon which it is predicated was improperly admitted, to defendant's prejudice.

The complaint charges that the value of the use of the land during the period of defendant's occupancy thereof was $5004 year. To support this averment, plaintiff's introduced several witnesses, and a majority of them testified that the use of the land was worth at least $500 a year, and two of plaintiffs’ witnesses testified that the use was much more than $500 per annum. Two of plaintiffs’ witnesses estimated the value of the use on the basis of a cash rental, and their estimate was from $2 to $2.25 an acre for each year. The testimony of defendant's witnesses was, in substance, that the value of the use was from $2 to $2.25 an acre each year. The question of the value of the use was a question of pure fact, and one falling strictly within the province of the jury to determine. We cannot say that the verdict is not supported by a preponderance of the evidence, and, even if the preponderance was in favor of a lower figure, that alone would not justify a court of review in setting aside the verdict. To do so would be, in effect, to substitute our judgment for that of the jury, which of course, cannot lawfully be done. It follows that the general verdict cannot be vacated on the ground of the insufficiency of the evidence. Halley v. Folsom, 1 N. D. 325, 48 N. W. Rep. 219.

The court instructed the jury, in effect, that they might or might not, at their discretion, allow interest at 7 per cent. as a part of the plaintiffs’ damages. The instruction was excepted to