"defendants fhall and may plead the general iffue, and give the "fpecial matter in evidence at any trial to be had thereupon; "and if the plaintiff or plaintiffs fhall become nonfuited, or dif"continue his, her, or their action or fuit; or if upon a verdict "or demurrer judgment fhall be given against the plaintiff or "plaintiffs, the defendant or defendants fhall and may recover "treble costs, and have fuch remedies for the fame as any de"fendant or defendants can or may have in other cafes where "colts are given by law." (L) In what Cafes there fhall be full Cofts, or no more Cofts than Damages. The 1. AN action of trefpafs tried, and damages under 40s. declaration fuggefted feveral trefpaffes, and among others for turning up the foil with ploughs, &c. upon which a queftion was made, whether the prothonotary should give any increase of cofts? The court held, that no colts de incremento fhould be taxed. Smithfend v. Long, Trin. 10 Aun. Rep. Ca. Pract. C. P. 2. 2. On writs of inquiry in cafes within the flat. 22 & 23 Car. 2. c. 9. the plaintiff fhall have full cofts, though he do not recover fo much as 40s. damages. Sheldon v. Ludgate, Trin. 3 G. 1. Bull. Ni. Pri. 329. 6 Viner 349. S.P. Hazeltinev. Kirk2 G. 2. Rep. Ca. Pract. C. B. 3. inn. houfe, East. clofes at a great difance, and the 3. Trefpafs for the entry of difeafed cattle into the plaintiff's Suppose I clofe, per quod the plaintiff's cattle were infected; upon not guilty have two pleaded, the plaintiff had a verdict for 205. The C. J., Powys and Fortescue, Justices, were for full costs, becaufe the confequential damage is a matter for which the plaintiff might have had a diftinct fatisfaction. Eyre, J. contrà, becaufe this recovery will not be pleadable to a fpecial action upon the cafe, for the fpecial injury quod cæteri negaverunt; and the plaintiff had full cofts. Anderfon v. Buckton, Trin. 5 G. 1. Str. 192. fame watercourfe running through both, I may allege the en try into one per qued the water was prevented from coming to the other, and there fhall be full cofts. Per cur. in Anderfon v. Buckton, Str. 192. their notions 4. In affault and battery if the defendant justify, that admits Judges have the battery, and is confequently equivalent to a certificate; but if differed as to the defendant juftify, and thereupon the plaintiff makes a new of giving affignment, to which the defendant pleads the general iffue, the thefe certifiplaintiff will have no more costs than damages without a certificates, many cate. Richards v. Turner, Trin. 6 G. 1. C. B. Bull. Ni. thought Pri. 330. having themfelves bound by the verdict; others thinking the ftatute meant to leave it to their difcretion on the whole circumstances of the cafe. And this feems to be now the prevailing opinion, as otherwife the statute would be entirely ufelefs. Bull. Ni. Pri. 330. 5. In an action on the cafe for words, to which the defendant But if fpecial pleaded a special juftification, the jury having found damages un- damage be der 40 5., it was moved that the plaintiff might have cofts de in- declaration, cremento, but the court held that notwithstanding the fpecial and a general Ee 2 pleading verdict found, though the damages recovered are under 403. pleading it was ftill an action for words within the ftat. 21 Jac. 1. c. 16. and must be governed thereby; and if the plaintiff does not recover above 40s., he shall have no more costs than damages. Anon. Mich. 7 G. 1. Rep. Ca. Pract. C. P. 22, the plaintiff shall have full cofts. Denny v. Wigg, Mich. 10 G. 2. Rep. Ca. Pract. C. P. 137. S. C. Pract. Reg. C. B. 111. S. P. Parke v. Davis, 6. In an action of trefpafs for pushing the tap out of a barrel, by which means the beer was fpilt, the damages were found under Mich.2 G.3. 40s. The court ordered full costs to be taxed, this cafe not beRep. Ca. Pract. C. B. ing within the statute; for no freehold could come in question, and 49.-Black- it is merely an injury to the plaintiff's perfonal property. Rofiter boyne v. Parv. Bolting, Trin. 9 G. 1. Rep. Ca. Pract. C. B. 24. ker, Trin. 2 G. 2. ib. So where the declaration was for chafing plaintiff's theep, per quod 10 ewes and 10 lambs were greatly damaged, the plaintiff was allowed his full cofts, it being a damage done to perfonal chat." tels. Arnold v. Thompson, Eatt. 7 G. 2. ib 99. S. C. Pract. Reg. C. B. 108. Barnes, 119. Vide Keen v. 6 Vin. Abr. Vida Beck v. S. C. Gilb. 198. S. P. Str. 634. 7. Trefpafs for breaking plaintiff's close, and chafing his bull. Verdict with 1 s. damages; and held by the court, that he should have his colts, because the 22 & 23 Car. 2. c. 9. extends only to fuch actions of trefpafs where the freehold may probably come in queftion. Vide Raym. 487. 3 Mod. 39. Thompson v. Berry, Eaft. 9 G. 1. Str. 551. 8. In trefpafs, assault, and battery, the declaration went on nee non infult. fecit upon the horfe of the plaintiff. Verdiâ pro quer. and 20 s. damages. The court refused to allow any more cofts than damages. Clarke v. Othery, Eaft. 11 G. 1. Str. 624. 9. Trefpafs quare claufum fregit, et quendam taurum perfonæ ignote Eq. Rep. fugavit, per quod the plaintiff's goofeberry bushes were thrown Franklin v. down necnon quinque perticas, Anglice poles, in eodem claufo erectas Jolland, Hil. affixatas et exiflentes fregit, laceravit et fpoliavit: verdict pro quer. 3W.3.cited and 15. damages. On motion for full cofts the court held, that Trespass the words in this declaration did not import an actual asportation, quare clau- by which is meant a carrying quite away, and that the tearing Jam fregit and pulling up the poles was not fuch an afportation. And here ftates, that the freehold might have come in question; fo the motion was defendants denied. Anon. C. B. Trin. 11 G. 1. Str. 633. first count broke and entered the close of the plaintiff, and the grafs there then growing, with feet in walking, trod down, &c. and dug up, and got divers large quantities of turf, &c. of the faid plaintiff, in and upon the said place in which, &c. and took and carried away the fame and converted and difpofed of the fame to their own ufe. Second count upon a fimilar trefpafs in another close. The defendants pleaded non cul. to the whole declaration, and two special pleas to the second count, and on the trial a verdict was found for the plaintiff on the general iifue with 1 s. damages, and for the defendan's on the special pleas, and the Judge did not certify. The queftion on the record was, whether the plaintiff was entitled to any more costs than damages under the tat. 22 & 23 Car. 2. c. 9. f. 136. (or ftat 2. c. 5. f. 19. Per Lord Mansfield, C, J, (after stating the cafe)-There is a puzzle and perplexity in the cafes on this part of the flatute, and a jumble in the reports, and, as the queftion is a general one, we thought it proper to confult all the judges; and they are all of opinion that this cafe is within the ftatute, and that the plaintiff ought to have no more coffs than damages. You will obferve that what has been called an afportavit in this declaration is a mode, a qualification of the injury done to the land. The trefpafs is laid to have been committed on the land by digging, &c. and the afportavit as part of the fame act; and on the trial of the iffue the freehold certainly might have come in queftion. This is clearly dif inguishable from an afportavit of perfonal property where the freehold cannot come in question, and which therefore is not within the act. Thus after trees are cut down and thereby fevered from the freehold, if a trefpaffer comes and carries them away, that cafe is not within the ftatute, because the freehold cannot come in queftion. Clegg v. Molyneux and another, Tiin, 21 G. 3. Doug. 780. 10. Tref 10. Trefpafs quare claufum fregit, and for erecting a wall and S. P. Beale Ipoiling the grafs pedibus ambulando. The defendant pleads non v. Moor, cul, as to all but treading down the grafs, and as to that juftifies Str. 1168. Trin. 15G.2. for a way. Plaintiff replies extra viam, upon which they were at Vide Affer iffue, and the jury find for the plaintiff upon both iffues, and 2 d. v. Finch, damages. Upon motion, the court ordered full cofts, though there was no certificate, it appearing by the record that the free- 6 Vin. Abr. hold was in question. Higgins v. Jennings, Mich. 13 G. 2. Str. 726. Mich. 30 Car. 2. 353. pl. 22. Trefpafs quare clau. sum fregit; plea non cul, and a right of way set out under an inclosure act, describing it by metes and bounds. To the latter plea the plaintiff replied extra viam, and iffue being joined thereon, there was a verdict for the plaintiff with 30s. damages and 30s. cofts. The judge not having certified, the court were unanimously of opinion that the plaintiff was entitled to no more costs than damages. And Buller, f. founded his opinion on the former determinations being wrong, because after the replication of extra viam the cafe was exactly the fame as if not guilty had been originally pleaded, and upon this iffue the title could not have come in question. Cochran v. Hartifon, Trin. 22 G. 3. Tidd's Law of Cofts, 82. Pract. 653. S. C. per nomen' Cocke.ili v. Allanfon, Bull. Ni. Pri. 330. S. C. fully reported in Hullock's Law of Cofts, 86. who remarks, that from the note of this cafe in Ni. Pri. it should feem to be the opinion of Mr. J. Buller that the principal which governed the refolution in that case extends to deprive a plaintiff of full costs without a certificate, in cafes where a right of way is pleaded as in a Lev. 234. and a replication of extra viam and not guilty thereto. But Mr. H. adds, fed quære. 112. Where II. In an action of trefpafs the jury gave 3 s. 4 d. damages, s. C. Pract. and alfo 40s. cofts, and the prothonotary allowed 6s. 8 d. the Reg. C. B. capiatur fine, in all 50s. It was infifted that the judgment was an action of erroneous, because the jury had allowed more costs than damages; trefpafs but the court over-ruled the objection, for the jury are not bound brought in by the statute; and the prothonotary muft fign judgment according to the verdict: and as to the capiatur fine, the prothonotary is directed by the 5&6 W. & M. to allow it to the plaintiff in increase of costs. Watkinson v. Sawyer and another, Eaft. 1 G. 2. Rep. Ca. Pract. C. B. 44. an inferior court, there cour the plaintiff will have his ftats. 43 El. cofts, for the c. 6. 22 & 23 Car. 2. c. 9. and 3 & 9 W. 3. c. 10. which give no more costs than damages in actions of trespass, do not extend to inferior courts; and, though the defendant remove the cause, and a verdict be given above for the plain iff, and damages under 40s. yet the plaintiff thall have his full cofts, because he had made his election in the inferior court, where he would have had costs; and the defendant fhall not reap fuch an advantage by removing the cause. Vids Rep. Ca Pract. C. B. 45. n. The ftat. 22 & 23 Car. 2. does not restrain the power of the jury; they may give what cofts they think fit in actions of trefpafa as in other cafes, it only restrains the court from giving costs de incremento. Ibbetson v. Brown, Rep. Ca. Pra&. C. B. 149. S. C. Pract. Reg. C. B. 110. Bull. Ni. 12. Trespass domum fregit ac feneftr' domus ill' ad valenc' 20 l., S. C. Birch & defenfacula domus ill' ad valenc' 10l., ad domum præd' spectan' et and Daffey, pertin' ibidem nuper invent' fregit et fpoliavit. No cofts de incre- Pii. 330. So, mento. The Chief Juftice faid, that if required at the trial, he in an action would have certified. Birch v. Daff, Trin. 3 G. 2. Pract. Reg. for trefpafs C. B. 107. and proftrating the hedges and fences, and 1 d. damages. Cofts de incremento were refused, no certificate. Mitchel v. Soaper, Eaft. 10 G. 1. Bunb. 167. So for cutting down trees. . Yard, 11 G. t. Com. Dig. title Cofts (A. 3). 13. In an action for words, the plaintiff laid special damages in the declaration, viz. lofs of marriage. Verdict pro quer. and 20s. damages. Upon a motion for full cofts it was objected, that the plaintiff had not any where alleged that she was capable of con Ee 3 tracting with cattle, and breaking there being Shepherd 1 S. C. Pract. tracting marriage, and that there was no colloquium of marriage fet forth, and a communication of marriage could not be intended. Sed per cur.-There is a colloquium of marriage fufficiently fet forth in the declaration; it is not necessary for the plaintiff to allege fhe was capable of marriage; if it was otherwife, it would have been a defence at the trial it is faid, per quod maritagium amifit, which is fufficient, and plaintiff had full costs. Roberts v. Holywell, Eaft. 5 G. 2. Kel. 64. 14. In trefpafs, wherever the freehold might have come in Reg. C. B. question, the judge's certificate is neceffary to entitle the plaintiff to full cofts, if the jury find the damages under 40s. Dixie, Bart. v. Somerfield and others, Trin. 5&6 G. 2. Rep. Ca. Pract. 107. Vide poft, S. C. Pract. Reg. C. B. 120. the defend. C. B. 86. 15. In an action of trefpafs by the mafter for beating his fervant per quod fervitium amifit, damages were given under 40s. It was moved to have full cofts, for that this is a fpecial action, and not an action of assault and battery within the flat. 22 & 23 Car. 2. c. 9. as it is exprefsly held in Salk. 206.; and per cur. the full cofts were granted. Hall v. Laruton, Eaft. 7 G. 2. Cunn. 38. 16. In an action of trefpafs for an affault, and tearing and fpoiling the plaintiff's clothes which he was clothed with, a verdict was found for the plaintiff with 1 d. damages, and 40 s. cofts The plaintiff given by the jury. It being questioned what colls the plaintiff declared that hould be, allowed, the court agreed that he fhould have full cofts, ant affaulted though no certificate was given by the judge who tried the cause, for it is not an action of aflault and battery within the statute of 22 & 23 Car. 2. c. 2. for the tearing and fpoiling the plaintiff's down upon clothes, which is joined with it, is founded on an injury done to the ground, his property, and the verdict is general for the plaintiff. Carruthers v. Lamb, Mich. & G. 2. Rep. Ca. Pract. C. B. 108. and beat threw him which was covered with The declaration stated that the defendant ftruck the plaintiff many violent blows, and flung and threw a large quantity of water upon and over the plaintiff, and then and there not only wetted him and put him in great danger of caching cold, but fpoiled his clothes, &c. Upon a motion to tax the plaintiff his full costs, Lord Loughborough, C. J. faid, there was much perplexity in motions of this fort, but the fenfe feemed to him to be, that where the jury do not find 40s. damages, there fhould be no more costs than damages. And Gould, J. observed, that the throwing the water and then and there fpoiling the clothes tied the whole count and complaint together. The rule was refused. Atkinson v. Jackton, Eaft. 26 G. 3. cited per Kerby, Serjt. amicus curia, 1 H. Blackit. 295. In an action of affault and battery the plaintiff in the fame count ftated, that the defendant then and there tore, &c. his clothes. The jury found a verdict for the plaintiff and 1 s. damages; and they alfo found, upon being afked by the judge, that the clothes were torn in confequence of the beating. Upon a motion for full cofts they were refufed; and per Buller, J.-The declaration in this cafe is fufficient to carry cofts, because the tearing, &c. is laid as a fubitantive fact. But the plaintiff must recover Jecundum allegate et probata. If the jury had found the truth of the allegation, the plaintiff would have been entitled to his full cofts; but they have negatived that part of the count, because they have found the tearing to be in confequence of the beating; and the court are bound by that finding, though it would have been more correct if they had found the defendant not guilty as to that part. Cotterill v. Tolly, Eaft. 27 G. 3. 1 Term Rep. K. B. 655. In an action of affault and battery the declaration, after stating the affault, went on thus: "And the faid I. then and there tore, &c. the clothes and wearing apparel of the said F., to wit, &c. wherewith he was then and there clothed, &c." The court were unan mous unanimous that the plaintiff was entitled to no more cofts than damages. And per Gould, J.-There are two courfes marked out for judges in cafes of this kind, one by the ftat. 43 Eliz. the other by 22 & 23 Car. 2. The first and beft determination is in 3 Keb.; but that has been open to a great deal of fubtle reafoning and diftinction. Yet I think that the best construction which beft anfwers this end of the legislature and puts a stop to all frivolous actions, by reftraining more costs than damages from being allowed in the cafes specified. If therefore the declaration ftates the tearing of the clothes to be done at the fame time with the beating, the court will conftrue it fo as to accomplish the object of the ftatute, and will hold the tearing to be part of the fame act and a confequence of the battery. well determined in Walker's cafe, 4 Co. 41. b. adtunc et ibidem united and coupled all together. Mears v. Greenaway, Mich. 30 G. 3. i H. Blackft. 291. S. P. Lockwood v. Stannard, Hil. 34 G. 3. 5 Term Rep. K. B. 482. It was 109. Barnes, 121. 17. In trefpafs quare claufum fregit, and for breaking a door, S. C. Pract. the plaintiff laid fpecial damages in his declaration. The jury Reg. C. B. found the fpecial matter for the defendant, and the reft for the plaintiff, with 5 5. damages. Held, that the special matter being found for the defendant, the reft was for a trefpafs against the plaintiff's freehold, the title of which might have come in queftion, and therefore it was requifite that the judge fhould have certified in order to entitle the plaintiff to full cofts. Tomlinson v. White and another, Eaft. 8 G. 2. Rep. Ca. Pract. C. P. 117. 18. Trefpafs for taking vi et armis plaintiff's horfe, and fending and conveying it from R. to G. On non cul. verdict for plaintiff, with s. 6d. damages. Full cofts were allowed. Harper v. Filer, Trin. 10 & 11 G. 2. Rep. temp. Hardw. 375. 124, 129. 19. Trefpafs for breaking plaintiff's clofe, &c. Plea common s. C. Prat. bar and new affignment, to which the defendant pleaded non. cul. Reg. C. B. Verdict for plaintiff, with 5 s. damages. To a motion to allow 110. Barnes, the plaintiff full cofts, it was objected by the defendant, and Videante, agreed by the court that this was no fpecial pleading, and the letter (F), rule was refufed. Ibbetson v. Brown, East. 11 G. 2. Rep. Ca. pl. 20. Pract. C. B. 149. 20. In an action for flanderous words the defendant juftified, S.C.Barnes, the jury found 1d. damages, and 40s. cofts. The prothonotary 128. having allowed full cofts, and the defendant being taken in execution, the court on motion directed that the money levied (the plaintiff deducting 2. and I d.) to be returned to the defendant. The plaintiff to pay cofts, and by confent the defendant to bring no action. The plaintiff not having proved any special damage, he is not entitled to full cofts: the pleading a juftification_does not alter the cafe. Dover v. Robinson, Eaft. 13 G. 2. Pract. Reg. C. B. 111. 21. In trefpafs for entering his houfe, and taking his meat, fpecifying quantities and kinds, half a guinea damages were given, and full coits were awarded; for as to the goods, it is in the nature of an action of trover, and there is to all purposes an afportation. Smith v. Clarke & al. Eaft. 13 G. 2. Str. 1130. S. 22. In an action for flanderous words spoken of the plaintiff in Vide Perry v the way of his trade, fpecial damage was laid, and the plaintiff Perry, Trin recovered 2 d. damages; and the question was, whether he 71. 5. C. fhould have any more cofts than damages under the flat. 21 Jac. 1. Str. 936. c. 15. f. 6. Per cur.-Plaintiff can have no more cofts than In Turner v. damages: the true diftinction is, that where the words are verdict was Ee 4 actionable Horton the |