In what cafes

the court will increase damages.

I Wilfon 5.

S. P.

Raym. 566. cited in point, where there was a wounding laid in the declaration, and alfo found by the verdict, yet held that it would not carry cofts; and the rather not, for two reafons. ft, That a wounding is laid in every declaration of affault and battery of course, and it is not material whether the verdict finds any thing about it or not; for I never knew in my practice, that, upon not guilty to the whole count of affault and battery, wounding, &c. would be neceffary to find the defendant not guilty of the wounding. A mayhem or grievous wound is of courfe thrown into declarations, and we cannot increase the damages upon a general wounding in a declaration and verdict; befides, where the damages are only found under 40s. the wounding must be inconfiderable, fo that I lay no weight at all upon the wounding. The other reafon against the wounding being material is, that the judge is not bound, or concluded by the verdict, because, if he was, there would be no room for a certificate, but the power of certifying is left to the judge, let the jury find what they will, fo that the damages given do not exceed 40s. and as the judge is not bound by the jury's finding a battery, no more is he bound by the jury's finding a wounding.

I found my opinion upon the reafon in Salk. 208. Venn verfus Philips, and Thompson and Berry. Pafch. 7 Geo. 2 C. B. without regard to afportavit or fpoliation, which is, that there is no cafe within the ftat. 22 & 23 Car. 2. but trefpafs quare claufum fregit, and affault and battery, and that in all other cafes a plaintiff who recovers, upon a perfonal action, damages under 40s. is intitled to full cofls upon the ftatute of Gloucester, without any certificate upon the ftat. 22 & 23 Car. 2. unless he is prevented of that benefit by a certificate upon the 43 of Eliz. c. 6. therefore in my opinion the plaintiff Milburne is intitled to his full cofts.

Abney Juftice-I am of the fame opinion with my Lord Chief Juftice.

Burnet Juftice. I am of opinion that the plaintiff Milburne muft have full costs; and first I shall state the verdict and fee of what the defendant is found guilty; for what he is not found guilty of, must be laid out of the cafe. He is found guilty of the affault, battery and wounding, and alfo of treading upon and Spoiling the coals, and breaking and Spoiling the Standard and roller of the plaintiff.

I fhall now mention the wounding, to lay it out of the cafe; it is true, that not only in mayhem, but in wounding specially

defcribed

defcribed in the declaration, or certified by a judge, or made out by affidavits, the court have thought themselves intitled, to increase the damages, but this is laid as a general wounding, and thrown in, of course, and as to increafing the damages, that is not now before the court, for there is no application about it, and therefore must be laid out of the case.

The whole will therefore depend upon the defendant's being , found guilty of an affault and battery, and of Spoiling of perfonal chattels, upon which there is no certificate, although the damages found are under 40s. and the queftion is, whether a certificate is neceffary to intitle the plaintiff to his full costs ?

may be de

The firft ftat. is the 43 of Eliz. c. 6. and by that, in perfonal By ftat. 43 actions where for affault and battery, or where the title or in- Eliz. in what heritance of the land was concerned, the plaintiff, though he cafe plaintiff recovered ever fo fmall damages, would be intitled to his full prived of full cofts upon the ftatute of Gloucester; fo he would, in all other cofts. perfonal actions if the judge did not certify to deprive him of them; but the judge had a difcretionary power to exclude the plaintiff from full cofts, where his damages were under 40s. in all perfonal actions but thofe of affault and battery, or where the title or inheritance is concerned; for, in thofe, he cannot certify to deprive the plaintiff of his full cofts; and though no certificates have been granted upon the flat. 43 Eliz. until very lately, viz. one, by my Lord Chief Juftice Willes, yet many books take notice, that fuch certificates might be granted. 2 Mod. 141. Styleman verfus Patrick. The reafon why the judges have always The reafon refused to certify upon the 43 of Eliz. has, perhaps, been, that why this ftaas caufes were very injudiciously tried in inferior jurifdictions in tute has not the county, the courts of Westminster would not fo far refent the plaintiff's coming into Westminster-hall, as to certify upon the 43 of Eliz. to deprive him of full cofts, where his damages were under 40s. efpecially, as he had an evident right to fue fomewhere, as appears by his obtaining a verdict, as they thought it a law too fevere to confine men to fue in the county courts, where the judges are frequently fo incapable of determining property; however the defendant was intitled to a certificate upon the 43 of Eliz. to deprive the plaintiff of full cofts, if the judge in his difcretion fhould think the cafe deserved it.

been put in

ure.

The next flat. is the 22 & 23 Car. 2. which although it men. Stat. 22 & 23 tions not only actions of affault and battery, and trefpafs, but other Car. 2. conperfonal actions in general, yet the conftruction thereupon has fired, per Burnet Juft. been, to restrain this ftatute to take in two cafes only, which are trefpafs quare claufum fregit, and affault and battery, and the reafon of fuch construction was this, viz. the flatute enacts, that

A trefpifs

upon a perfonal chattel

is not within 22 & 23 Car.

2.

in all actions of trefpafs, affault and battery, and other perfonal actions, wherein the judge thall not certify an affault and battery fufficiently proved, or that the title of the land did come in queftion, there fhall be no more cofts than damages, where the damages found are under 40s.; fo that although the first words are general, yet by the latter words, actions are reftrained to fuch, wherein there can be fuch certifying of the battery or the like. Keble, (though an inaccurate reporter, yet a tolerable hiftorian of the law,) proves to us that there was fome doubt in the courts foon after this act of parliament of 22 & 23 Car. 2. 3 Keb. 31. Brown and Taylor, was an action on the cafe for difturbing the plaintiff in his common, and one penny dainages, and an allowance of full cofts was objected to, there being no certificate on the trial; but the objection was over-ruled; for by the court, "it has been refolved by the major part of the judges of England, that the ftat. of 22 & 23 Car. 2. extends only to trefpafs, affault and battery, and not to actions upon the cafe, or to affumpfits or fuch like;" but this book doth not confine it to trefpals quare claufum fregit in words; but to be fure it is to be intended, because the certificate is only poffible in these two cafes; the next cafe is in 3 Keb. 121. which is an action of trefpafs for breaking the plaintiff's net, and there being no certificate that the title was in queflion, and no title in the declaration, the court refufed to give more cofts than damages; this is contrary to the former cafe in 3 Keb. 31. And the judges by that determined that the flat. of 22 & 23 Car. 2. was not confined to trefpafs quare claufum fregit only, but takes in other perfonal trefpalles. The next refolution is in 3 Keb. 389. Orpwood verfus Holden, which is contrary to 3 Keb. 121. and agreeable to 3 Keb. 31. The next cafe upon the fame fubject is 3 Keb. 469, Dicer verfus Stanton, fed adjournatur. After thefe, comes the cafe in T. Raym. 487. 2 Jon. 232. 2 Sho. 258. and that was quite like this cafe, the trefpafs was laid generally in the parish, as this is, and not fpecially in any land of the plaintiff, fo as to bring the title in queftion, and the court held it out of the ftatute, and full cofts were given, although there was no certificate; and fince that cafe, there have been many uniform judgments, where an action of trefpafs of a perfonal chattel has been held out of the ftat. of 22 & 23 Car. 2.

An objection has been made, that in this cafe the cause of action is part of it within, and part of it out of the flat. Car. 2. The fault and battery found by the verdict is clearly within the flatute, and if there had been nothing more found the plaintiff could not have had full cofts, unlefs the judge had certified that the affault and battery was fufficiently proved; but here is, befides

that,

1

that, a trefpafs found upon a perfonal chattel, which is clearly out of the ftatute; and if that had been only found by the verdict, the plaintiff would as clearly have been intitled to full cofts without a certificate, although his damages had not amounted to above 405.

And I am also of opinion, that though this verdict finds one Juftice Bartrefpafs within the flatute, and another out of it, yet the nett's reafon for plaintiff to plaintiff will be intitled to his full cofts although his damages have full exceed not 55. and although the judge hath not certified; and costs. I go upon this foundation, becaufe fuch a conftruction will be for the benefit of the defendant; for the plaintiff is lefs vexatious by including all the injuries in one action, he might have feparated his caufes of action, and divided them into two fuits, fo that the defendant, as he is found guilty of all the injuries muft have paid the cofts of both the actions; upon one action, without a certificate, and upon the other, with a certificate; whereas in the prefent cafe, he will, upon our conftruction, only pay the cofts of one action: in the cafe of Lately and Fry, Com. Rep. 19, 20. trefpafs quare claufum fregit, and his corn there growing, cut and carried away, it appears the caufe of action was partly within the ftatute, and partly out of it; the jury found the defendant guilty of breaking the clofe and cutting the corn, but not guilty as to carrying it away, damages 10s. there was no certificate; the court refufed to give full cofts for want of a certificate, becaufe the trefpafs found by the jury was within the ftatute; but after feveral debates the court inclined to be of opinion to have given full cofts, if, befides finding the defendant guilty of breaking the close and cutting the corn, they had alfo found him guilty of carrying it away; then the cafe had been exactly parallel to this cafe of Milburne and Reade, for then the jury would have found one trefpafs that is within the ftatute, and another trespass out of the statute.

As to actions of trefpafs quare claufum fregit for digging the plaintiff's foil, or pulling up his hedge, &c. or overflowing his land, thefe being injuries immediately to the freehold, and it being poffible for the title of the land to come in queftion in such action, the plaintiff fhall not have full cofts without a certificate, because it is a cafe within the ftatute, and whereupon the judge might certify that the title of the land came in queftion. But if the plaintiff had declared further, as, that befides the breaking and entering the clofe and pulling up the hedge, the defendant had carried it away, and the jury had found him guilty of the latter as well as the former, he (plaintiff) fhould have his full cofts without a certificate, Comyns 20. The pulling up the

hedge,

A trefpifs

upon a perfonal chattel

is not within 22 & 23 Car.

2.

in all actions of trefpafs, affault and battery, and other perfonal actions, wherein the judge fhall not certify an affault and battery fufficiently proved, or that the title of the land did come in queftion, there fhall be no more cofts than damages, where the damages found are under 40s.; fo that although the first words are general, yet by the latter words, actions are reftrained to fuch, wherein there can be fuch certifying of the battery or the like. Keble, (though an inaccurate reporter, yet a tolerable hiftorian of the law,) proves to us that there was fome doubt in the courts foon after this act of parliament of 22 & 23 Car. 2. 3 Keb. 31. Brown and Taylor, was an action on the cafe for dif turbing the plaintiff in his common, and one penny damages, and an allowance of full cofts was objected to, there being no certificate on the trial; but the objection was over-ruled; for by the court," it has been refolved by the major part of the judges of England, that the ftat. of 22 & 23 Car. 2. extends only to trefpafs, affault and battery, and not to actions upon the cafe, or to affumpfits or fuch like;" but this book doth not confine it to trefpals quare claufum fregit in words; but to be fure it is to be intended, becaufe the certificate is only poffible in thefe two cafes; the next cafe is in 3 Keb. 121. which is an action of trefpafs for breaking the plaintiff's net, and there being no certificate that the title was in queftion, and no title in the declaration, the court refufed to give more cofts than damages; this is contrary to the former cafe in 3 Keb. 31. And the judges by that determined that the flat. of 22 & 23 Car. 2. was not confined to trefpals quare claufum fregit only, but takes in other perfonal trefpalles. The next refolution is in 3 Keb. 389. Orpwood verfus Holden, which is contrary to 3 Keb. 121. and agreeable to Keb. 31. The next cafe upon the fame fubject is 3 Keb. 469, Dicer verfus Stanton, fed adjournatur. After thefe, comes the cafe in T. Raym. 487. 2 Jon. 232. 2 Sho. 258. and that was quite like this cafe, the trefpafs was laid generally in the parish, as this is, and not fpecially in any land of the plaintiff, fo as to bring the title in queftion, and the court held it out of the ftatute, and full cofts were given, although there was no certificate; and fince that cafe, there have been many uniform judgments, where an action of trefpafs of a perfonal chattel has been held out of the ftat. of 22 & 23 Car. 2.

3

An objection has been made, that in this cafe the caufe of action. is part of it within, and part of it out of the flat. Car. 2. The fault and battery found by the verdict is clearly within the flatute, and if there had been nothing more found the plaintiff could not have had full cofts, unlefs the judge had certified that the offault and battery was fufficiently proved; but here is, befides

that,