Serjeant Forfter for defendant against full costs. Serjeant Wilson for plaintiff, for full cofts. Stat, of firft gave In what cafe by kat. 43 Eliz. c. 6. a of full cofts. The poftea being returned, and brought into the office in order for the colts to be taxed, and final judgment entered thereupon; all the prothonotaries were of opinion, that the plaintiff was intitled to his full cofts upon this verdict, notwithstanding the damages found by the jury were under the value of forty fhillings, and accordingly Mr. Prothonotary Mainwaring taxed cofts de incremento to thirty-two pounds and upwards. Car. 2. c. Whereupon Mr. Serjeant Forfler on behalf of the defendant moved to fet afide and vacate the taxation of cofts de incremento, alledging this was an action of trefpafs, affault and battery, and that the judge, at the trial of the caufe, not having certified under his hand upon the back of the record that an affault and battery was fufficiently proved according to the flat. 22 & 23 9. fect. 136. the plaintiff fhall not recover or obtain more cofts of fuit than the damages fo found fhall amount unto; and that if any more costs in any fuch action fhall be awarded, the judgment fhall be void, and the defendant is by the faid fa tute acquitted of and from the fame, and may have his action against the plaintiff for fuch vexatious fuits, and recover his damages and cofts of fuch his fuit, in any of the courts of record at Westminster. Whereupon the court made a rule to fhew caufe, why the taxation of cofts de incremento fhould not be fet afide; and Mr. Juftice Gould, at the fame time, defired Serjeant Forfer to look into the cafe of Cooke verfus Sayer, 2 Burro. 755 Serjeant Wilson for the plaintiff, upon fhewing caufe, alledged that by the ftatute of Gloucester, 6′Ed. 1. c. 1. (which is the firft ftatute concerning cofts) the plaintiff is well intitled to his full cofts in this cafe, unless fome fubfequent ftatute hinders or prevents him; for it is provided by this act, that the demandant may recover against the tenant the cofts of his writ purchased, together with the damages, and that this act fhall hold place, in all cafes where the party is to recover damages. So that, in all cafes where damages were recovered before, or by this act, the plaintiff fhall recover his cofts also: this was the original of full cofts, or cofts de incremento, The first statute made for preventing or hindering plaintiffs from recovering cofts in particular cafes is the 43 Eliz. cap. 6. plaintiff may Ject. 2. intitled an act for avoiding trifling and frivolous fuits in be deprived law in her Majefty's courts at Westminster, whereby it is enacted, If upon any action perfonal to be brought in any of her Majefty's courts at Westminster, not being for any title or intereft "of lands, nor concerning the freehold and inheritance of any lands, nor for any battery, it fhali appear to the judges for "the fame court, and fo fignified or fet down by the juftices " be "before whom the fame shall be tried, that the debt or damages "to be recovered therein, in the fame court, shall not amount to "the fum of forty fhillings or above, that in every such case the judges and juftices before whom any fuch action fhall be pursued, "thall not award for cofts to the party plaintiff, any greater in ufe. or more cofts than the fum of the debt and damages so re"covered fhall amount unto, but lefs at their difcretions." This ftat. of 43 Eliz. has been frequently taken in common confideration (I do not fay in legal or judicial proceedings) to have given the judges an authority to certify in order to intitle the plaintiff to full cofts; but the cafe, upon well confidering But it hath this ftatute, is just the reverfe; for the plaintiff will have his full not been put cofts in all cafes in which he before had them by the ftatute of Gloucefter, unless the judge certifies upon the 43 Eliz. to prevent his having cofts; but as the judges never certified upon the 43 Ehz. it had no effect at all; for although the fuit was frivolous, and the plaintiff recovered lefs than forty fhillings damages, yet he had fill his full cofts upon the ftatute of Gloucester, and could only be deprived of them by a certificate of the judge upon the 43 Eliz. fo the prefent cafe is clearly not within the ftat. 43 Eliz. here being no certificate.-And it appears from the cafe of Reeves and Butler, Gilb. Rep. 195, 196. that there had never been any fuch certificate fince the making of that ftatute. See alfo Gilb. Hift. C. Pleas, 210. deprived of As the fat. 43 Eliz. c. 6. was never put in execution, it gave In what cafes rife to the 22 & 23 Car. 2. c. 9. fect. 136. which is in these the plaintiff is words, viz." And for prevention of trivial and vexatious fuits full cofts un"in law, whereby many good fubjects of this realm have been lefs the judge "and daily are undone, contrary to the intention of an act made doth certify. "in the forty-third year of Queen Elizabeth for avoiding in"finite numbers of fmall and trifling fuits commenced in the 66 66 64 courts at Westminster; be it farther enacted for making the "faid law effectual, that from and after the firft of May 1671, "in all actions of trefpafs, affault and battery, and other per"fonal actions wherein the judge at the trial of the cause shall "not find and certify under his hand upon the back of the record, that an affault and battery was fufficiently proved by the plaintiff against the defendant, or that the freehold, or title "of the land mentioned in the plaintiff's declaration was chiefly in queftion, the plaintiff in fuch action, in cafe the jury hall find the damages to be under the value of forty fhillings, fhall not recover or obtain more cofts of "fuit than the damages fo found fhall amount unto: and if any more cofts in any fuch action fhall be awarded, the judg ment fhall be void, and the defendant is hereby acquitted of " and from the fame, and may have his action against the plainVol. III. Y * tiff Serjeant Forfter for defendant against full cofts. Serjeant Wilfon for plaintiff, for full costs. Stat, of firft gave In what cafe by fat. 43 Eliz. c. 6. a plaintiff may be deprived of full costs. The poftea being returned, and brought into the office in order for the colts to be taxed, and final judgment entered thereupon; all the prothonotaries were of opinion, that the plaintiff was intitled to his full cofts upon this verdict, notwithstanding the damages found by the jury were under the value of forty fhillings, and accordingly Mr. Prothonotary Mainwaring taxed cofts de incremento to thirty-two pounds and upwards. Whereupon Mr. Serjeant Forfler on behalf of the defendant moved to fet afide and vacate the taxation of cofts de incremento, alledging this was an action of trefpafs, affault and battery, and that the judge, at the trial of the caufe, not having certified under his hand upon the back of the record that an affault and battery was fufficiently proved according to the flat. 22 & 23 Car. 2. c. 9. fect. 136. the plaintiff fhall not recover or obtain more cofts of fuit than the damages fo found fhall amount unto; and that if any more costs in any fuch action fhall be awarded, the judgment fhall be void, and the defendant is by the faid ftatute acquitted of and from the fame, and may have his action against the plaintiff for fuch vexatious fuits, and recover his damages and cofts of fuch his fuit, in any of the courts of record at Westminster. Whereupon the court made a rule to fhew cause, why the taxation of cofts de incremento fhould not be fet afide; and Mr. Juftice Gould, at the fame time, defired Serjeant Forfler to look into the cafe of Cooke verfus Sayer, 2 Burro. 755. Serjeant Wilson for the plaintiff, upon fhewing caufe, alledged that by the ftatute of Gloucester, 6 Ed. 1. c. 1. (which is the firft ftatute concerning cofts) the plaintiff is well intitled to his full cofts in this cafe, unlefs fome fubfequent ftatute hinders or prevents him; for it is provided by this act, that the demandant may recover against the tenant the cofts of his writ purchased, together with the damages, and that this act fhall hold place, in all cafes where the party is to recover damages. So that, in all cafes where damages were recovered before, or by this act, the plaintiff fhall recover his cofts alfo: this was the original of full cofts, or cofts de incremento, The firft ftatute made for preventing or hindering plaintiffs from recovering cofts in particular cafes is the 43 Eliz. cap. 6. fect. 2. intitled an act for avoiding trifling and frivolous fuits in law in her Majefty's courts at Westminster, whereby it is enacted, "If upon any action personal to be brought in any of her Majefty's courts at Westminster, not being for any title or interest of lands, nor concerning the freehold and inheritance of any "lands, nor for any battery, it fhali appear to the judges for "the same court, and fo fignified or fet down by the juftices "be in ufe. "before whom the fame fhall be tried, that the debt or damages "to be recovered therein, in the fame court, fhall not amount to the fum of forty fhillings or above, that in every fuch cafe the "judges and juftices before whom any fuch action fhall be purfued, "thall not award for colts to the party plaintiff, any greater or more costs than the fum of the debt and damages fo re"covered fhall amount unto, but lefs at their discretions." This ftat. of 43 Eliz. has been frequently taken in common confideration (I do not fay in legal or judicial proceedings) to have given the judges an authority to certify in order to intitle the plaintiff to full cofts; but the cafe, upon well confidering But it hath this ftatute, is juft the reverfe; for the plaintiff will have his full not been put cofts in all cafes in which he before had them by the ftatute of Gloucester, unless the judge certifies upon the 43 Eliz. to prevent his having cofts; but as the judges never certified upon the 43 Eliz. it had no effect at all; for although the fuit was frivolous, and the plaintiff recovered lefs than forty fhillings damages, yet he had fill his full cofts upon the ftatute of Gloucester, and could only be deprived of them by a certificate of the judge upon the 43 Eliz. fo the prefent cafe is clearly not within the flat. 43 Eliz. here being no certificate.-And it appears from the cafe of Reeves and Butler, Gilb. Rep. 195, 196. that there had never been any fuch certificate fince the making of that ftatute. See alfo Gilb. Hift. C. Pleas, 210. deprived of As the fat. 43 Eliz. c. 6. was never put in execution, it gave In what cafes rife to the 22 & 23 Car. 2. c. 9. fect. 136. which is in thefe the plaintiff is words, viz. "And for prevention of trivial and vexatious fuits full cofts un"in law, whereby many good fubjects of this realm have been lefs the judge "and daily are undone, contrary to the intention of an act made doth certify. "in the forty-third year of Queen Elizabeth for avoiding in"finite numbers of fmall and trifling fuits commenced in the "courts at Weftminfer; be it farther enacted for making the "faid law effectual, that from and after the firft of May 1671, "in all actions of trefpafs, affault and battery, and other per"fonal actions wherein the judge at the trial of the cause shall "not find and certify under his hand upon the back of the re"cord, that an affault and battery was fufficiently proved by the "plaintiff against the defendant, or that the freehold, or title "of the land mentioned in the plaintiff's declaration was chiefly in queftion, the plaintiff in fuch action, in cafe the jury fhall find the damages to be under the value of forty fhillings, fhall not recover or obtain more cofts of fuit than the damages fo found fhall amount unto: and if any more cofts in any fuch action fhall be awarded, the judgment fhall be void, and the defendant is hereby acquitted of "and from the fame, and may have his action against the plainVol. III. " 46 Y * tiff tiff for fuch vexatious fuits, and recover his damages and cofts "of such his fuit, in any of the said courts of record." It is true that immediately after the making of the flatule 22 & 23 Car. 2. c. 9. the judges, upon confultation with the prothonotaries, feemed to be of opinion, that this ftatute extended to other actions (because the words" other perfonal actions" are therein mentioned) besides those of affault and battery, and actions of trefpafs quare claufum fregit, as appears from the cafe of the Earl of Pembroke and Weftall, 3 Keb. 121. which was in Hil. 24 Car. 2 B. R. a little above a year after the making that ftatute; and alfo from the cafe of Claxton and Laws, which was in Mich. 25 Car. 2. fomething above two years after that ftatute was made. But fince the 25 Car. 2. it has been the conftant uniform refolution of the courts at Westminfler, that the flat. 22 & 23 Car. 2. c. 9. fect. 136. was not to be extended to other actions, but to be confined to actions of affault and battery, and trefpafs quare claufum fregit, as appears from the cafe of Smith and Batterton in Sir Tho. Raym. 487. Sir Tho. Jones 232. and 2 Show. 258. B. R. which was trefbattery, and pafs quare vi et armis, the defendant flung down certain stalls trefpais quare" of the plaintiff in the market place of Highworth in Com. claufum fregit." Wilts. Upon not guilty pleaded, verdict was found for the "plaintiff, but damages were given under 40s. and upon the Jecondary's refufing to tax cofts as being a cafe within 22 & The ftat. of 22 & 23 Car. 2. c. 9. fect. 136. only extends to actions of affault and Milburne Trin. 17 & 18 Geo. 2. in C. B. 66 66 23 Car. 2. c. 9. fect. 136. it was moved by the plaintiff's counfel that the cofts might be taxed; and, upon debate, it was refolved by the whole court that the plaintiff fhall have "his ordinary cofts, because the ftatute fhall be intended to "reach only to fuch actions in which the freehold may ap 66 parently come in debate; but, in this cafe the action is not quare claufum fregit, but only for destroying a chattel, and the "freehold cannot come in debate, any more than if a man shall "take his fword out, and run a coach-horfe into the guts, whereby he died, and the owner fhall bring an action vi et "armis for it, and recover under, 40s. damages, yet he shall "have his full cofts." The cafe of Milburne verfus Reade, Trin. 17 & 18 Geo. 2. verfus Reade, C. B. was an action of trefpafs, wherein the plaintiff declared that the defendant, with force and arms, did make an affault upon the plaintiff, in the parish of A. in the county of Northumberland, and did there beat, wound, and ill treat the plaintiff, fo that his life was defpaired of, and did then and there alfo obftruct the plaintiff from getting coals, and the coals of the plaintiff then and there found took and carried away, and other coals to the value of 10/. trod upon and fpoiled, and one ftandard of the plaintiff there lately erected, and one roller fixed thereon |