Ford v. Neely

Per Curiam, For a statement of this case we refer to the opinion of Judge Haymaker, who presided at the trial. For the reasons given by him, the first, second and fourth assignments of error are overruled. The third assignment of error relates to the right of Emma-Neely to recover costs. Until the statute of 8 and 9 Wm. 3, chap. 11, if one [655] of several defendants was acquitted, he was not entitled to costs, the courts of England construing the prior acts to relate only to the case of a total acquittal of all the defendants: Maus v. Maus, 10 Watts, 87. But as pointed out by Justice Kennedy in that case, the statute enacted that in cases of trespass, assault, false imprisonment or ejectio firmse, where several persons were made defendants and one or more of them should be acquitted by verdict, every person so acquitted should recover his costs. As disclosed by the evidence in this case, the cause of action sued on was the trespass of Milton Neely, in which Emma Neely was in no wise a participant. The case is within the spirit, if not the strict letter of the enactment, notwithstanding the plaintiff elected to sue in assumpsit. The courts of this state do not proceed upon the motion that statutes giving costs are penal statutes to be strictly construed, “but have adopted the more wise and just policy that they ought to be largely and liberally interpreted so as to do complete justice by compensating parties, who have been obliged to incur necessary expenses, either in prosecuting just and lawful claims, or in defending themselves against unjust and unlawful ones:” Steele v. Lineberger, 72 Pa. 239. This, said Justice Shakswood, is seen by the whole current of our decisions, and is the true spirit of the legislation of this state. Applying the principle recognized in that and other cases, and bearing in mind that the issue tried by the jury was simply between Mary Ann Ford and Emma Neely, and, having regard to the substantial cause of action, we conclude .that the court committed no error in holding that Emma Neely was entitled to recover her costs. The assignments of error are overruled, and the judgment is affirmed.