Benton v. Dale

Curia. It is a sufficient answer to the application for trebling the damages, &c. that the verdict is general on both counts. To entitle the plaintiff to have the damages and costs trebled, it should have been on the first count only, which was upon the statute. As to the application for single costs, the argument seems to have proceeded upon a misapprehension of the 7th section, which does not give costs, in the Common Pleas, in trespass on land, riot concerning freehold or title, though the; Court should certify that the trespass was wilful and mali-. cious. This is an action provided for in the 5th section, which expressly regulates costs in all actions (in the Com? mon Pleas) not concerning any freehold or title, of land, nor [164] for any assault, battery or imprisonment, replevin, slander or malicious prosecution, nor by or against executors or administrators. It denies costs to the plaintiff, unless he recover more than 25 dollars, and gives costs to the defendant. Now ' here is a recovery of 11 dollars only, in an action which does, not concern freehold or title, or assault, battery, fyc'. in the words of that section. Then comes the 7th section, within which this case is supposed to be; but the 7th section extends, in terms, to those actions of trespass only, which are hot provided for in the 5th section. In this Court, the plaintiff cannot have costs, unless he recover more than 50 dollars, except where freehold or title'is brought in question, which was not done by the present action. In this view of the case, it is not necessary to pronounce whether the habeas corpus shall be deemed a continuation of the action in the Common Pleas. ' It being a case provided" for by the 5th' section, if it were a continuancp, the result would be the same upon the question of costs ; which we deny to the plaintiff, and order a judgment, in favour of the defendant, for his costs. Rule accordingly, (a) Footnotes [(a)] Vid. sess. 41, ch. 94, s. 5 and 16. The revision of Kent & Radcliff, (vol. 1, 530, s. 8) gave costs in all Co.urts of Record, where the verdict, in trespass, was for the" plaintiff, and the Judge certified, upon the record, that the trespass was wilful and malicious. This being inapplicable to the Common Pleas, (composed of Judges, and taxing before any record was made,) the statute," (sess. 27, ch. 59, 3 Webster, 461) gives the same effect to an entry in the minutes of the Common Pleas," under their direction, that the trespass was wilful smd malicious. These provisions seem to have been virtually repealed by the revision of 1813; "and thfe plaintiff in most cases of small trespasses, though wilful and malicious, is now left to his remedy in a Justice’s Court, if he does not mean to be mulcted in costs. '