court will permit the plaintiff, in order to cure the error, to set aside his own proceedings, upon payment of costs, and to issue a new writ of inquiry.

V. Of the Costs.

By Stat. 22 and 23 Car. 2. c. 9. (14)" In all actions of as"sault and battery, wherein the judge at the trial of the "cause shall not certify under his hand upon the back of "the record, that an assault and battery was sufficiently proved by the plaintiff against the defendant, the plain"tiff, in case the jury shall find the damages to be under the "value of forty shillings, shall not recover more costs than "the damages so found shall amount unto."

Upon this statute, which does not extend to writs of inquiry, it must be observed, that a certificate of an assault only is not sufficient to entitle the plaintiff to full costs',' and, consequently, although an admission on the record of a battery, by a justification of it, will supersede the necessity of a certificate, yet a similar admission of an assault only will not'.

An injury to a personal chattel, although laid in the same declaration with an assault and battery, is not within the statute"; but this rule holds only where such injury is a substantive and independent injury, and stated in a distinct and independent count; for where in trespass for an assault and battery and tearing plaintiff's clothes, the jury found that the tearing was in consequence of the battery, and gave less than forty shillings damages, it was holden that the plaintiff was not entitled to any more costs than damages. So where in an action of assault, and for tearing the plaintiff's clothes, the plaintiff recovered less than forty shillings, although q Sheldon v.Ludgate, C.B.T. 3 Geo, 1. u Milbourne v. Reade, 3 Wils. 322. Bull. N. P. 329.

r Smith v. Neesam, 2 Lev. 102.
$ Smith v. Edge, 6 T. R. 562.
t Page v. Creed, 3 T.R. 391. Bren-
nan v. Redmond, 1 Taunton's R.16.

x Cotterill v. Tolly, 1 T. R. 655.
Hamson v. Ashdead, B. R. T. 27
Geo. 2. Bull. N. P. 329. and Sayer's
Rep. 91.

y Mears v. Greenaway, 1 H. Bl. 291.

(14) Extended to courts of Great Sessions for Wales and Chester, Court of Common Pleas for county palatine of Lancaster, and Court of Pleas for county palatine of Durham, by stat. 11 and 12 W. 3. c. 9.

the declaration charged the tearing the clothes as a substantive fact, yet the tearing being stated in the same count with the assault and battery, and alleged to have been done at the same time and place, it was holden that the plaintif was not entitled to any more costs than damages; for the court will construe the declaration so as to accomplish the object of the statute, and after a general verdict, it will be intended that the tearing was found to be part of the same act, and a consequence of the battery.

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66

By stat. 8 and 9 W. 3. c. 11. s. 1. "Where several persons "are made defendants to any action or plaint of trespass, (15) "assault or false imprisonment, and any one or more of "them shall be upon the trial thereof acquitted by verdict, every person so acquitted shall have his costs in like manner as if a verdict had been given against the plaintiff and "acquitted all the defendants, uniess the judge, before "whom such cause shall be tried, shall, immediately after "the trial thereof in open court, certify upon the record un"der his hand, that there was a reasonable cause for making "such person a defendant to such action."

In assault and battery against several defendants, one let judgment go by default, and the others pleaded not guilty. On the trial, the jury gave damages against him who had suffered judgment by default, and found the other defendants not guilty. Wilmot J. being desired to certify that

there was a reasonable cause to make the others defendants, said he thought the stat. 8 and 9 W. 3. c. 11. s. 1. did not extend to this case, but only to cases where some of the defendants are convicted by verdict, and others acquitted. In this case it is as if they had severed in pleading, and as if the action was against the others only; and on these grounds he refused to certify.

By stat. 8 and 9 W. 3. c. 11. s. 4. "In all actions of tres"pass, commenced or prosecuted in any of his Majesty's "courts of record at Westminster, wherein at the trial of "the cause it shall appear, and be certified by the judge un"der his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty was z Lockwood v. Stannard, 5 T. R. 482. a Collins v. Harrison and others, WorS. P. cester Lent Ass. 1757, MSS.

(15) i. e. trespass vi et armis; for it has been holden, that this statute does not extend to actions of trespass on the case, as for a nuisance. Tipping v. Coot and Nutt, H. 8 G. 2. B. R. MSS. S. C. cited in Buller's N. P. 331, by the name of Dibbon v. Cook.

"wilful and malicious, the plaintiff shall recover not only "his damages but full costs.'

Of the Certificate under the 43 Eliz. to deprive the Plaintiff of Costs. The preceding statutes enable plaintiffs, by means of the judge's certificate, to recover full costs; it remains only to mention the 43d Eliz. c. 6. s. 2. which empowers judges in all personal actions, not therein excepted, to deprive plaintiffs, by means of a certificate, which may be granted under certain circumstances, of the benefit of full costs.

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The provisions of this statute are as follow: "If upon any action personal, brought in any of the king's courts at Westminster, not being for any title or interest of lands, (16) nor concerning the freehold or inheritance of any "lands, nor for any battery, it shall appear to the judges "for the same court, and so signified or set down by the "justices before whom the same shall be tried, that the "debt or damages to be recovered therein shall not amount "to the sum of forty shillings or above, the judges before "whom any such action shall be pursued shall not award "for costs to the plaintiff any greater costs than the amount "of the debt or damages recovered, but less at their dis"cretion."

In trespass for an assault and taking a rope, the jury gave eighteen-pence damages. And Mr. Justice Burnet, who tried the cause, certified according to st. 43 Eliz. c. 6. in order to deprive plaintiff of costs. The plaintiff however moved (as it was a new case) for costs de incremento, pretending that here was an asportavit, which, on the 22 & 23 Car. 2. c. 9. had been always holden to carry costs. But the court in this case refused to give costs, for the st. 43 Eliz. takes in all but a few excepted cases, of which this is not one. "And

b 43 Eliz. c. 6. S. 2.

c Walker v. Robinson, Str. 1232, and 1 Wils. 93.

(16) An action on the case, for a disturbance of or injury to the plaintiff's right of common, is not necessarily an action for any title or interest of lands; it may be brought in order to assert such title, or a right to such interest; or it may be brought against a mere wrong-doer, when the plaintiff's title to common is not disputed; or against another commoner, where there is no question on the right of either party: in the two last cases it is within the statute and the judge may certify. Edmonson v. Edmonson, 8 East, 294.

"though it has not been usual to grant a certificate on this "act, yet we have often known it threatened (17).”

It has been holden, that a certificate upon this statute may be granted after the trial of the cause, the time for granting it not having been fixed by the statute.

d Holland v. Gore, C. B. T. 32 Geo. 2. Sayer on Costs, 19.

(17) In White v. Smith, C. B. E. 17 Geo. 2. Willes C. J. in an action for taking sand on Hounslow Heath, certified under this statute. A similar certificate was granted in Bartlet v. Robbins, C. B. E. 5 Geo. 3. in an action of assumpsit, and recently by Kenyon C. J. in Dand v. Sexton, H. 29 Geo. 3. 3 T. R. 37. in an action of trespass vi et armis for beating a dog, although it was urged that the statute applied to those actions only which could be brought in the county court, and that consequently it did not extend to an action vi et armis. The Court of King's Bench concurred in opinion with Kenyon C. J. as to the propriety of granting this certificate, on the authority of the preceding cases. In Emmet v. Lyne, E. 45 G. 3. C. B. i N. R. 255. Sir J. Mansfield C. J, certified under this statute, in an action for false imprisonment; the court were of opinion, that the certificate was rightly granted, because an imprisonment did not necessarily include a battery. In Edmonson v. Edmonson, Carlisle Summ. Ass. 1806, Sutton, baron, certified in an action on the case for an injury done to the plaintiff's right of common by digging turves there; and the Court of King's Bench held, that the certificate was proper. See 8 East, 294, and ante, n. 14.

CHAP. IV.

OF THE ACTION OF ASSUMPSIT.

I. Of the Action of Assumpsit, and of the Agreement, for the Non-performance of which this Action may be maintained.

II. Of the general Indebitatus Assumpsit.

III. Of the Declaration.

I. Of the Action of Assumpsit, and of the Agreement, for the Non-performance of which this Action may be maintained.

DEFINITION.-The action of assumpsit is an action of trespass on the case, whereby a compensation, in damages, may be recovered for an injury sustained by the non-performance of a parol agreement.

Agreements are distinguished, into agreements by spe